Fordham International Law Journal
Volume 39, Issue 2
Article 5
The End of Law: The ISIL Case Study for a
Comprehensive Theory of Lawlessness
Frédéric Gilles Sourgens∗
∗
Washburn University School of Law
c by the authors. Fordham International Law Journal is produced by The Berkeley
Copyright Electronic Press (bepress). http://ir.lawnet.fordham.edu/ilj
The End of Law: The ISIL Case Study for a
Comprehensive Theory of Lawlessness
Frédéric Gilles Sourgens
Abstract
This Article has five parts. Part I sets out and adopts the basic premises of the jurisprudential
perspective championed by Professor Reisman and sketches his argument that legal solutions can
always be fashioned in a meaningful and realistic manner. Part II discusses the development
of ISIL in the Middle East. Part III analyzes the lawlessness problem created by ISIL for the
affected local communities and explains how loss of control, left unattended, transforms into a
loss of authority of prescription by destroying the social fabric needed for legal processes to have
meaning. Part IV develops how municipal lawlessness has a contagion effect on the international
plane through what this Article calls the transnational transference of lawlessness by comparing
international legal reactions to ISIL’s putative establishment of a caliphate in Syria and Iraq. Part
V sketches how the contagion effect can be stopped by means of the diagnostic tools developed
in Parts III and IV. The Article demonstrates that both public debate and scholarly engagement so
far have focused on the wrong question: whether or how to use force to wrest control of territory
from ISIL. Given the progression of lawlessness from loss of control to loss of authority mapped
in Part III of the Article, this incorrect focus is understandable. But to be effective, the debate
instead must focus directly on how authoritative decision-making processes can be rekindled and
protected in Syria, Iraq, and beyond. These structures were degraded not just by ISIL, which may
well be a symptom of failing authority structures rather than its proximate cause; in fact, these
structures were sabotaged by Western and Ottoman colonial powers long before ISIL sought its
opportunity on Arabian soil. Perhaps counter-intuitively, use of force that does not also address
and re-strengthen the social fabric in the region could well be worse long-term than no use of
force at all. Given the human toll in the region—and the role as other than an innocent bystander
of Western powers—the normative end of law should inspire us towards more effective—and more
authoritative—forms of intervention.
KEYWORDS: ISIL; Lawlessness; case study; problem; Syria; Consent-Based; Iraq; International
Law; threat
ARTICLE
THE END OF LAW: THE ISIL CASE STUDY FOR A
COMPREHENSIVE THEORY OF LAWLESSNESS
Frédéric Gilles Sourgens*
INTRODUCTION .............................................................................356 I. DECODING LEGAL DECISION—THE NEW HAVEN
APPROACH ............................................................................365 A. The Framework of Legal Decision .....................................366 1. Law as a Communicative Process .................................366 2. Authority and Control ...................................................369 3. Constitutive and Public Order Processes ......................372 B. Professor Reisman’s Lawlessness Argument .....................373 II. THE ISIL PROBLEM ...................................................................375 III. LAWLESSNESS ON THE GROUND ........................................380 A. The Pragmatic Problem ......................................................381 B. The Formal Issue ................................................................382 C. The Functional Dimension..................................................387 D. The Progression of Lawlessness .........................................392 IV. LAWLESSNESS AND INTERNATIONAL LAW ....................392 A. International Response to ISIL in Iraq ...............................395 1. The Consent-Based Case...............................................395 2. Problems with the Consent-Based Case ........................398 B. Intervention in Syria ...........................................................399 1. Collective Self-Defense.................................................402 2. Humanitarian Intervention ............................................404 3. Threat to the Integrity of International Law ..................406 * Associate Professor of Law, Washburn University School of Law. I would like to thank
Raj Bhala, Sam Halabi, John Head, Virginia Harper Ho, Patricia Judd, Ali Khan, Craig Martin,
and Amy Westbrook for their participation at the Great Plains Colloquium, at which the paper
was presented. I would also like to thank Diane Desierto, Kabir Duggal, and Borzu Sabahi for
their comments and encouragement for this project at the Oxford Investment Claims Summer
Academy. I particularly would like to thank Asaf Lubin for his many insightful comments on
an earlier draft of the article. I would also like to thank Kabir Duggal for his kindness in
reading the postscript at the very last minute.
355
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C. The Transnational Transference of Lawlessness—
Comparing Syria and Iraq .................................................407 1. Transnational Transference of Pragmatic
Lawlessness.................................................................407 2. Transnational Transference of Formal Lawlessness .....409 3. Transnational Transference of Functional
Lawlessness.................................................................412 CONCLUSION: A SKETCH FOR DEALING WITH
LAWLESSNESS IN THE ISIL CONTEXT ...........................414 POSTSCRIPT ....................................................................................420 INTRODUCTION
Can the United States respond lawfully to persistent and intense
episodes of lawlessness in the face of United Nations Security
Council gridlock? The global reaction to the Daesh (or “Islamic State
of Iraq and the Levant” or “ISIL”) occupation of Syrian territory
makes this more than an academic question. As it stands, significant
weight of authority supports that US air strikes in Syria are unlawful
despite the documented atrocities committed by ISIL (as well as
Syrian government forces) upon the Syrian civilian population.
This Article submits that academic and political commentators
ask the wrong question. Lawlessness such as that currently witnessed
in Syria is both absolute and impervious to legal response. Speaking
of a lawful response in such circumstances is meaningless. This
Article provides the first fully theorized account of lawlessness. This
account begins with the domestic progression of lawlessness in three
stages: (1) pragmatic lawlessness, constituting a temporary loss of
control by the government apparatus; (2) formal lawlessness,
constituting a loss of authority of the government apparatus; and (3)
functional lawlessness, constituting a loss of the social fabric
necessary to support any authoritative social decision. It theorizes that
international law progressively loses its own authority to address
lawlessness because of a transnational transference of lawlessness;
this transference becomes complete at the functional lawlessness
stage. The Article submits that lawlessness in Syria has reached
functional levels. The Article theorizes finally that the United States
must act to counteract the corrosive effect of functional lawlessness
extra-legally in order to protect its national security interests and
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forestall more serious systemic losses of authority on the international
plane.
Deploying this theoretical construct, the Article argues that
academic and political commentators focus on a tool that is inefficient
and potentially counterproductive, namely the escalation of purely
coercive responses. The Article concludes that only policy responses
specifically tailored to restore authority by strengthening the
capabilities of those affected by lawlessness can be successful and
provides specific policy proposals how to achieve this end.
Der Knabe seufzt über's grüne Meer,
Vom fernenden Ufer kam er her,
Er wünscht sich mächtige Schwingen,
Die sollten ihn ins heimische Land,
Woran ihn ewige Sehnsucht mahnt,
Im rauschenden Fluge bringen.
- Franz Schubert, Atys, D.585.1
When men commit unspeakable horrors before our eyes and we
are powerless to stop them, the Western canon from Thucydides’
History of the Peloponnesian War onwards has mourned the end of
law.2 What is more, the Western canon fears lawlessness as a
contagious, consuming, and covetous force.3 ISIL, or Daesh, as it is
1. “The boy sighs over the green sea,/ From a far shore came he here,/ He wishes for
mighty wings:/ They should bring him to his home-country,/ Of which eternal longing reminds
him,/ On sweeping pinions.” FRANZ SCHUBERT, ATYS, D.585 (1883), in SCHUBERT:
MAYRHOFER-LIEDER, VOL. 2 (Naxos 2003), http://www.naxos.com/sungtext/PDF/8.5547
39.pdf. Johann Baptist Mayrhofer authored the original poem.
2. THUCYDIDES, THE PELOPONNESIAN WAR 302 (Martin Hammond trans., Oxford
University Press 2009) (431-404 B.C.) (“You know as well as we do that when we are talking
on the human plane questions of justice only arise when there is equal power to compel: in
terms of practicality the dominant exact what they can and the weak concede what they
must.”); see id. at 172 (“With all life thrown into chaos at this time of crisis for the city, human
nature triumphed over law . . . ”).
3. The linkage between lawlessness and plague are powerful in Western history and
literature. See, e.g., RANDAL P. GARZA, UNDERSTANDING PLAGUE: THE MEDICAL AND
IMAGINATIVE TEXTS OF MEDIEVAL SPAIN 19 (2008) (“In Thucydides’ view, such disregard of
funerary practices combined with the human being’s inability prevent or cure the disease to
lead to a general decline in the perceived value of human life. As a result, general lawlessness
followed.”); ROBERT HOLLANDER, BOCCACCIO’S DANTE AND THE SHAPING FORCE OF
SATIRE 121 (1997) (discussing the attempts by Boccaccio to re-theorize law from the
lawlessness engendered by the plague through a social reconstitution of community).
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known in the Middle East, now again brings us face to face with that
force: ISIL proudly trumpets the vilest forms of cruelty it inflicts on
those within its grasp.4 Daesh is not a transient terrorist threat but is
conquering territory in the Middle East and beyond—and has
succeeded in displacing weak and failing states in the region 5 The
West appears singularly powerless to respond to ISIL;6 but averting
its eyes is no longer possible either when the children of those fleeing
from the massacres are washing dead upon our shores rather than
dying in the ruins of a far off land.7
Tragically, the West seems to be lost midway between continued
isolationist denial and renewed interventionist fervor in its attempts to
grapple with the crisis.8 International law, the straightforward path to
address international lawlessness, has no manifest means to guide
decision-making to face this new threat absent Security Council
action, which as of today is unlikely to be decisive.9 So how can, and
4. See Rukmini Callimachi, ISIS Enshrines a Theology of Rape, N.Y. TIMES, Aug. 13,
2015,
http://www.nytimes.com/2015/08/14/world/middleeast/isis-enshrines-a-theology-ofrape.html (discussing the organized use of rape as a policy tool by ISIS); The Editorial Board,
The Crimes of Palmyra, N.Y. TIMES, Aug. 25, 2015, http://www.nytimes.com/2015/08/26/
opinion/the-crimes-of-palmyra.html (“The Islamic State, the ultrafundamentalist group better
known as ISIS, has laid a trail of unspeakable horrors in its march through Syria and Iraq –
videotaped beheadings, ritualized rape and all manner of grisly torture and murder of anyone
who does not subscribe to its extreme version of Islam.”).
5. Christina Pazzanese, The Islamic State of Play, HARV. GAZETTE, Oct. 24, 2014,
http://news.harvard.edu/gazette/story/2014/10/the-islamic-state-of-play/ (noting that what is
distinctive about ISIL is its ability to hold territory).
6. See Mark Mazzetti & Matt Apuzzo, Analysts Detail Claims That Reports on ISIS
Were Distorted, N.Y. TIMES, Sept. 15, 2015, http://www.nytimes.com/2015/09/16/us/
politics/analysts-said-to-provide-evidence-of-distorted-reports-on-isis.html (detailing ongoing
concerns that U.S. military reports on the success of air strikes against ISIL were exaggerated);
see also Anne Barnard, Turkey’s Focus on Crushing Kurdish Separatists Complicates the
Fight Against ISIS, N.Y. TIMES, July 28, 2015, http://www.nytimes.com/2015/07/29/world/
turkeys-focus-on-crushing-kurd-extremists-complicates-isis-efforts.html (noting that Turkish
forces nominally allied with the U.S. in the fight against ISIL are attacking Kurdish fighters
combatting ISIL); Krisztina Than & Ivana Sekularac, Hungary Shuts EU Border, Taking
Migrant Crisis Into Its Own Hands, REUTERS, Sept. 16, 2015, http://in.reuters.com/article/
2015/09/15/europe-migrants-crisis-hungary-border-eu-idINKCN0RF1E120150915 (reporting
moves made by Hungary to undermine relief efforts for the growing migrant humanitarian
crisis).
7. See Robert Mackey, Brutal Images of Syrian Boy Drowned Off Turkey Must Be Seen,
Activists Say, N.Y. TIMES Sept. 2, 2015, http://www.nytimes.com/2015/09/03/world/
middleeast/brutal-images-of-syrian-boy-drowned-off-turkey-must-be-seen-activists-say.html.
8. See supra note 6.
9. See Krishnadev Calamur, Obama Has Support For Syria Strikes, But Are They
Legal?, NPR (Sept. 25, 2014), http://www.npr.org/sections/parallels/2014/09/25/351433505/
obama-has-support-for-syria-strikes-but-are-they-legal (summarizing the academic positions
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should, the United States and its allies react to the specter of ISIL’s
apparently expanding lawless rule?
Two opposing options come readily to mind. One approach is to
abandon all hope of law and act decisively and unconstrainedly to
purge the threat. Niccolò Machiavelli observed that “experience
shows that in our times the rulers who have done great things are
those who have set little store by keeping their word, being skillful
rather in cunningly deceiving men; they have got the better of those
who have relied on being trustworthy.”10 The “times” Machiavelli
described were marred by deep crisis—law and civil society in
Machiavelli’s native Florence had been eviscerated entirely by civil
strife and war when Machiavelli wrote The Prince for Florence’s new
ruler.11 In such times, Machiavelli advised, faithfulness—law—is a
dangerous myth and rulers would be well advised to treat it as little
more than one tool among others to re-establish order.12 The end—
and only the end—excuses the means.13
regarding the questionable legality of strikes against ISIL in Syria under international law);
Michelle Nichols, UN Security Council Adopts Resolution Stifling ISIS, Nusra Front Cash
Flows, HAARETZ, Feb. 12, 2015, http://www.haaretz.com/news/middle-east/1.642279 (noting
the geopolitical voting blocs obstructing more effective resolutions in the Security Council).
10. NICCOLÒ MACHIAVELLI, THE PRINCE 61 (Quentin Skinner & Russell Price eds.,
1988) (1532). Machiavelli has had an enduring impact on relevant legal scholarship. See, e.g.,
Kenneth R. Mayer, Executive Power in the Obama Administration and the Decision to Seek
Congressional Authorization for a Military Attack Against Syria: Implications for Theories of
Unilateral Action, 4 UTAH L. REV. 821, 832 (2014) (discussing Machiavelli in the context of
unilateral action against Syria); Julian Davis Mortenson, A Theory of Republican Prerogative,
88 S. CAL. L. REV. 45, 90-91 n.121 (2014) (discussing the impact of Machiavellian thought on
executive action).
11. See John Parkin, Dialogue in The Prince, in NICCOLÒ MACHIAVELLI’S THE PRINCE:
NEW INTERDISCIPLINARY ESSAYS 65, 71 (Martin Coyle ed., 1995) (“The metatextual
reference to aiming high cited above, for example, is at once an introduction to further
predictable examples of regal virtue (Moses, Cyrus, Romulus among them) and an incitement
to the Medici to cultivate their virtù in the Machiavellian terms of energy, initiative,
constitutional reform and armed force in whatever political context (Florence or elsewhere: it
isn’t clear) they operate. . . . The point for him is to use this freedom to convert humanist
commonplaces into something else while retaining some contact with humanism via for
instance the classical notion of virtù itself.”); J.G.A. POCOCK, THE MACHIAVELLIAN
MOMENT: FLORENTINE POLITICAL THOUGHT AND THE ATLANTIC REPUBLICAN TRADITION
160-61 (2d ed. 2003) (noting the relationship between The Prince and overthrow or innovation
in the context of a “society [that] is atomized into a chaos of unreconciled and conflicting
wills”).
12. See 1 QUENTIN SKINNER, THE FOUNDATIONS OF MODERN POLITICAL THOUGHT 186
(1978) (“Machiavelli invariably sees the world of politics as one in which the rational methods
of the law-giver must be supplemented at all times with the ferocity of the lion and the cunning
of the fox.”). This, of course, is not the only possible interpretation of Machiavelli but one that
has gained prevalence in contemporary political theory. While I adhere to this interpretation of
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Professor W. Michael Reisman, a leading international legal
theorist, rejects this answer. In his 2012 work, The Quest for World
Order and Human Dignity in the Twenty-first Century, he adopts a
functionalist approach.14 This approach allows him to diagnose and
correct the problem of formalist legal analysis: crises reveal a clash
between sovereignty-based and human-rights-based reasoning.15
Professor Reisman’s approach is uniquely relevant because it is that
very clash that perplexes the predominant academic responses to the
policy choices made by Western powers in seeking to counter ISIL.16
Noting the adage “silent enim leges inter arma” (“the laws fall
mute in times of violence”), Professor Reisman submits that true
Machiavelli, the Machiavellian point is intended as a conceptual starting point rather than
purely textual exegesis.
13. See id. at 184 n.1 (noting that the translation to make Machiavelli say the end
justifies the means “is perhaps over-eager” because the “verbs Machiavelli uses – in
characteristically epigrammatic juxtaposition – are accusare and scusare. The action itself
accuses, but its outcome excuses (rather than justifies) its performance.”).
14. W. MICHAEL REISMAN, THE QUEST FOR WORLD ORDER AND HUMAN DIGNITY IN
THE TWENTY-FIRST CENTURY: CONSTITUTIVE PROCESS AND INDIVIDUAL COMMITMENT
(2012). On the importance of Michael Reisman in US legal scholarship, see Siegfried
Wiessner, Law as a Means to a Public Order of Human Dignity: The Jurisprudence of
Michael Reisman, 34 YALE J. INT’L L. 525, passim (2009); Larry May, The UN Charter,
Human Rights Law, and Contingent Pacifism, 23 J. TRANSNAT’L L. & POL’Y 37, 52-53 (2014)
(noting the influence of Michael Reisman on questions of the use of force).
15. See REISMAN, supra note 14, at 386-87 (discussing how such clashes can be
reconciled).
16. See Louise Arimatsu & Michael Schmitt, The Legal Basis for War Against ISIS
Remains Contentious, GUARDIAN, Oct. 6, 2014, http://www.theguardian.com/commentisfree/
2014/oct/06/legal-basis-war-isis-syria-islamic-state (“Most, if not all, international law experts
agree that military operations against Isis in Iraq comport with international law. The same
cannot be said of the operations against Isis in Syria.”); Mary Ellen O’Connell, Obama’s
Illegal War, The Islamic State Never Attacked Us. So Why Are We Attacking Them?,
POLITICO, Sept. 11, 2014, http://www.politico.com/magazine/story/2014/09/obamas-illegalwar-10863_Page2.html (O’Connell teaches international law at Notre Dame); Dapo Akande &
Zachary Vermeer, The Airstrikes Against Islamic State and the Alleged Prohibition on Military
Assistance to Governments in Civil Wars, EJIL: TALK! (Feb. 2, 2015), http://www.
ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-alleged-prohibition-on-militaryassistance-to-governments-in-civil-wars/; Raphael Van Steenberghe, The Alleged Prohibition
on Intervening in Civil Wars Is Still Alive After Airstrikes Against Islamic State in Iraq: A
Response to Dapo Akande and Zachary Vermeer, EJIL: TALK! (Feb. 12, 2015),
http://www.ejiltalk.org/the-alleged-prohibition-on-intervening-in-civil-wars-is-still-alive-afterthe-airstrikes-against-islamic-state-in-iraq-a-response-to-dapo-akande-and-zacharyvermeer/#more-13063; Jennifer Trahan, Pesky Questions of International Law: What’s the
Basis for Air Strikes in Syria, OPINIO JURIS (Sept. 23, 2014), http://opiniojuris.org/
2014/09/23/guest-post-pesky-questions-international-law-whats-basis-air-strikes-syria/ (“Thus,
while it is not impossible that air strikes in Syria could be justified under international law, the
Administration still needs to demonstrate a solid legal foundation for them.”).
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lawlessness, “transposed to the international political realm and
international law [would be] utterly destructive.”17 Consequently, his
treatment “reject[s] the notion that there are areas or sectors of
international life in which lawful decisions which are contextually
meaningful and yet realistic are not demanded and cannot be
designed.”18 Professor Reisman explains that the problem is not one
of lawlessness, as such, but one of “offshore zones” of international
law in which the constitutive configuration of the process of
authoritative international decision-making does not reflect highly
effective hierarchical institutions.19 In these offshore zones, he
submits, the design of a lawful decision does not, and cannot, follow a
traditional textual-rule-based mode (determining and applying a
relevant rule of law to the situation at hand) thus leading to the
impression of lawlessness;20 instead, the non-hierarchical constitutive
configuration of the international decision-making process requires a
policy-context-based mode of decision-making (determining the
appropriate goals for the problem being addressed and providing a
strategic approach how best to make them effective).21 This mode, he
submits, will maintain the ability to fashion international decisions
that remain at the same time authoritative and controlling, and thus
lawful.22
This Article disagrees with Professor Reisman’s assessment and
seeks to revise it in order to respond to current events. It submits that
current events provide the exception that tends to prove Professor
Reisman’s rule;23 here, the specific context of a terrorist network
17. REISMAN, supra note 14, at 21.
18. Id. This statement has some overlap with constructivist theory. See Shima Baradaran
et al., Does International Law Matter?, 97 MINN. L. REV. 743, 756-60 (2013) (summarizing
constructivist theory of international norm creation and compliance). For the constructivist
heritage of the New Haven School, see Anthony D’Amato, Non-State Actors from the
Perspective of the Policy-Oriented School, in PARTICIPANTS IN THE INTERNATIONAL LEGAL
SYSTEM: MULTIPLE PERSPECTIVES ON NON-STATE ACTORS IN INTERNATIONAL LAW 64, 67
(Jean d’Aspremont ed., 2011); Philip A. Karber, “Constructivism” as a Method in
International Law, 94 AM. SOC’Y INT’L L. PROC. 189, 189, 192 (2000).
19. REISMAN, supra note 14, at 117.
20. See id. at 169-71.
21. See id. at 169, 183-86. This feature is not accidental but one that is very much in the
interest of the international community in order effectively to engage thorny policy issues
defying ready codification.
22. See id. at 433-54.
23. See id. at 21 (noting as the threat to lawful order, “Carl Schmitt’s sovereign, ‘he who
decides on the exception,’ decides when to step outside the law”). Schmitt remains an
important, if controversial, figure in legal discourse. See, e.g., Robert Knowles, National
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operating in an environment of failing municipal and transnational
governance structures has provided an example in which lawlessness
has so eviscerated the social fabric of the Syrian community as to
destroy the necessary basis for legal authority and as to require the reestablishment of legal order wholesale. True lawlessness exists and,
as a matter of definition, cannot be lawfully combatted.24 Law in a
lawless space ceases to be meaningful;25 adherence to it runs the risk
of misunderstanding the problem and proposing the kinds of solutions
that further exacerbate it.26
But, as the Article concludes, not all is lost for law. Lawlessness
points out the “end” of law in both its descriptive and normative
meaning of terminus and purpose respectively. Descriptively,
lawlessness points out the conceptual limit of law and how social
processes are pushed beyond it.27 Here the Article rejects Professor
Reisman’s invocation of law as a meaningful yet realistic guide for
decision-making.28 As a descriptive matter, the choice between means
Security Rulemaking, 41 FLA. ST. L. REV. 883, 890-91 (2014) (noting that “Schmitt's
perspective . . . has dominated national security law scholarship at least since September 11,
2001”); Nomi Maya Stolzenberg, Political Theology with a Difference, 4 U.C. IRVINE L. REV.
407, 413-14 (2014) (proposing a reconciliation of Schmittian political theology with liberal
political theory); Adrian Vermeule, Our Schmittian Administrative Law, 122 HARV. L. REV.
1095, 1098-1101 (2009) (discussing Schmittian account of exceptions in the context of
administrative law).
24. See CARL SCHMITT, POLITISCHE THEOLOGIE 19-20 (Duncker & Humblot eds., 2004)
(“Every general norm demands normal living conditions that form the factual predicate to
which it is to be applied and which are in turn subjected to its normative rule. Norm needs a
homogeneous medium. This factual normalcy is not just an ‘external condition’ that a jurist
could ignore; quite to the contrary, it is part of its immanent validity. There is no norm that
could be applied to chaos. Order must be established for rule of law to make sense.”) (author’s
translation).
25. See id.
26. See Gertrude Leighton, The Legal Community of Mankind: A Critical Analysis of the
Modern Concept of World Organization, 103 U. PA. L. REV. 1114, 1117-18 (1955) (book
review) (noting the inherent relation between international legal norm creation and application
and the social processes in which they are embedded).
27. Unlike the classic discussion between positivists like Raz and constructivists like
Dworkin about the limits of law, the point is not so much to distinguish between legal and
social rules. Rather, the point is that legal decision-making reaches its terminus (even in a
Dworkinian conception) when the social fabric itself disintegrates. See Joseph Raz, Legal
Principles and the Limits of Law, 81 YALE L.J. 823, 842-53 (1972) (laying out the positivist
position that law has limits); Ronald Dworkin, The Model of Rules, 35 U. CHI. L. REV. 14,
passim (1967) (providing the counterpoint to Raz’s argument). On the continued importance of
the Raz-Dworkin argument, see Shyamkrishna Balganesh & Gideon Parchomovsky, Structure
and Value in the Common Law, 163 U. PA. L. REV. 1241, 1254-55 (2015).
28. See REISMAN, supra note 14, at 21.
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to address this crisis cannot be discerned by references to legal rules
or decision-making processes.29
But normatively, lawlessness reveals that the “end” or purpose
of law is precisely to root out such states of crisis and re-establish
social processes that are once again authoritatively governable.
Lawlessness from this vantage point is not a black hole in the sense of
dispensing with the values of the rule of law in formulating policy
prescriptions, as some have argued.30 Quite to the contrary, any such
view would risk extenuating the corrosive effect of lawlessness and
swallow more and more weight-bearing elements of authoritative
decision-making, i.e., law, as such.31 The Article thus submits that
Professor Reisman’s analysis is normatively apt—law strives for a
world in which lawful decision can always be contextually
meaningful yet realistic.32 Not yielding to this normative demand
degrades the authority of law, and, over time, its ability to constrain,
at all.33 This Article goes on to make a contribution by developing a
coherent theory of how this corrosive effect of lawlessness operates
beginning on the municipal stage and, through transnational
transference, ending on the international plane.
Using this theory, the Article concludes that the key to
developing a policy response to ISIL lies in addressing the cause of
lawlessness in Syria and Iraq, namely the severe and ongoing
deterioration of social structures lending authority to legal decision.
No matter the coercive choices made, it is this authority gap that
imperatively must be closed to stem the contagion of lawlessness in
the region and to protect U.S. and Western national security interests.
This authority gap must first and foremost address the growing
29. See id.
30. See Vermeule, supra note 23, at 1149 (arguing that thick rule of law values must
cede before the exception).
31. See SCHMITT, supra note 24, at 19 (“The exception reveals the essence of state
authority with greatest clarity. It separates decision from the legal norm; and (to formulate in
the form of a paradox) authority proves that to create rights, it does not have to be in the
right.”) (author’s translation) (translator’s note – the German word is “Recht” which refers
both to “law” as in the legal order and rights. The word “rights” is chosen to maintain the
linguistic aporia intended by Schmitt). The point thus is that the exception always seeks to
create rights/ law rather than further eviscerate them. See id. (“Autorität … um Recht zu
schaffen”/ “authority … in order to create law” designates a teleology of authority as by
definition jurisgenerative). If the reaction to the exception fails to do so, it simply fails to be
authoritative by Schmitt’s construct of authority. See id.
32. See REISMAN, supra note 14, at 21.
33. See id. at 213-16.
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displacement of refugees from the area and their continued
participation in decisions about their homeland. Any other response
will lead to the emergence of renewed and more severe forms of
lawlessness from a region already left in a state of social decay and
developmental jeopardy.34
This Article has five parts. Part I sets out and adopts the basic
premises of the jurisprudential perspective championed by Professor
Reisman and sketches his argument that legal solutions can always be
fashioned in a meaningful and realistic manner.35 Part II discusses the
development of ISIL in the Middle East. Part III analyzes the
lawlessness problem created by ISIL for the affected local
communities and explains how loss of control, left unattended,
transforms into a loss of authority of prescription by destroying the
social fabric needed for legal processes to have meaning. Part IV
develops how municipal lawlessness has a contagion effect on the
international plane through what this Article calls the transnational
transference of lawlessness by comparing international legal reactions
to ISIL’s putative establishment of a caliphate in Syria and Iraq.36 Part
V sketches how the contagion effect can be stopped by means of the
diagnostic tools developed in Parts III and IV.
The Article demonstrates that both public debate and scholarly
engagement so far have focused on the wrong question: whether or
how to use force to wrest control of territory from ISIL.37 Given the
progression of lawlessness from loss of control to loss of authority
mapped in Part III of the Article, this incorrect focus is
understandable. But to be effective, the debate instead must focus
directly on how authoritative decision-making processes can be
rekindled and protected in Syria, Iraq, and beyond. These structures
were degraded not just by ISIL, which may well be a symptom of
failing authority structures rather than its proximate cause;38 in fact,
34. See Josh Feng, How Successful Were the Millennium Development Goals? A Final
Report, NEW SECURITY BEAT (July 28, 2015), http://www.newsecuritybeat.org/2015/07/
successful-millennium-development-goals-final-report/ (“Conflict and displacement is taking a
toll as well. While hunger has fallen in most areas, projections indicate that the prevalence of
undernourishment in the Middle East will rise by 32 percent between 2014 and 2016 due to
war, civil unrest, and increasing numbers of refugees.”).
35. REISMAN, supra note 14, at 21.
36. See infra Section IV.A.
37. See supra note 16.
38. See Press Release, John McCain, Senator, Statement on President Obama’s Proposed
AUMF (Feb. 11, 2015), http://www.mccain.senate.gov/public/index.cfm/2015/2/statement-bysenator-john-mccain-on-president-obama-s-proposed-aumf (demanding “a more coherent,
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these structures were sabotaged by Western and Ottoman colonial
powers long before ISIL sought its opportunity on Arabian soil.39
Perhaps counter-intuitively, use of force that does not also address
and re-strengthen the social fabric in the region could well be worse
long-term than no use of force at all. Given the human toll in the
region—and the role as other than an innocent bystander of Western
powers—the normative end of law should inspire us towards more
effective—and more authoritative—forms of intervention.
I. DECODING LEGAL DECISION—THE NEW HAVEN APPROACH
The New Haven School of International Law (the “School”) is
one of the most influential legal theories in international legal
discourse.40 It is also one of the most misunderstood.41 This potential
for misunderstanding is regrettable from a theoretical point of view;
the School is a direct relation of two of the most important American
legal theories, American legal realism and pragmatism.42 The School,
founded by Myres McDougal and Harold Lasswell, is closely related
to notable figures in American jurisprudence such as Karl Llewellyn
of UCC Article 2 fame, or, more distantly, Justices Oliver Wendell
Holmes and Benjamin N. Cardozo.43 More pragmatically, the School
comprehensive strategy, and a recognition that ISIL is a symptom of the disease spawned by
Bashar Assad’s war on the Syrian people”).
39. See Tarek Osman, Why Border Lines Drawn with a Ruler in WW1 Still Rock the
Middle East, BBC (Dec. 14, 2013), http://www.bbc.com/news/world-middle-east-25299553
(explaining the effect of colonial French and British ambition on current Middle East
conflicts).
40. See Anne Peters, Realizing Utopias as a Scholarly Endeavour, 24 EUR. J. INT’L L.
533, 541 (2013) (noting that the School is one of the two “most influential academic schools of
our time”).
41. See Richard Falk, Casting the Spell: The New Haven School of International Law,
104 YALE L.J. 1991, 2001 (1995) (noting the common perception that the New Haven
School’s prescriptions would simply coincide with State Department needs).
42. See Harold Hongju Koh, Michael Reisman, Dean of the New Haven School of
International Law, 34 YALE J. INT’L L. 501, 501-02 (2009) (noting the legal realist origin of
the school); Robert S. Summers, Pragmatic Instrumentalism in Twentieth Century American
Legal Thought – A Synthesis and Critique of Our Dominant General Theory About Law and
Its Use, 66 CORNELL L. REV. 861, 862 (1981) (noting the importance of pragmatism and legal
realism).
43. Larry A. DiMatteo, Reason and Context: A Dual Track Theory of Interpretation, 109
PENN ST. L. REV. 397, 446 (2004) (“Realism owes its name to Llewellyn's 1930 article A
Realistic Jurisprudence.”); John C.P. Goldberg, The Life of the Law, 51 STAN. L. REV. 1419,
1451-52 (1999) (reviewing ANDREW L. KAUFMAN, CARDOZO (1998)) (noting the relationship
between Holmes, Cardozo and legal realism); 1 HAROLD D. LASSWELL & MYRES S.
MCDOUGAL, JURISPRUDENCE FOR A FREE SOCIETY, STUDIES IN LAW, SCIENCE AND POLICY
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is the best-developed international legal theory advocating a
capabilities approach to human development—an approach adopted
in economics and political theory convincingly to point out the
myopia of formalist measures of macroeconomic development and
decline.44 The School thus assists in designing legal strategies to
foster such development.
This Part first lays out the analytical framework of the School,
which the Article adopts.45 It second develops the argument against
lawlessness proposed by the School’s most important current
champion, Professor Michael Reisman.46 Parts III to V explain why
this proposal is the only means to address the flaws in current legal
responses to the Syrian crisis. But as also discussed in Parts III to V,
the Syrian conflict causes the central assumption of even his
capacious proposal to fail; there is thus no escaping lawlessness.
A. The Framework of Legal Decision
1. Law as a Communicative Process
As a jurisprudence deeply indebted to legal realism, the School
is directed against legal formalism.47 It rejects that legal rules could
be divined, derived, or applied in a vacuum.48 The School instead
understands law as a particular form of process of decision.49 The
idea, simply, is that law is a means of communication.50 This
communication must be understood within the larger social context of
which it forms a part.51 Because this social context and the legal
perspective interpenetrate each other, statements about law must take
13-14 (1992) (associating the key tenets of the School with Justice Holmes, Judge Jerome
Frank, and legal realism).
44. Compare LASSWELL & MCDOUGAL, supra note 43, at 171-77 (specifying the
different features of each particular value process to be protected in global public order), and
REISMAN, supra note 14, at 360 (same), with MARTHA C. NUSSBAUM, CREATING
CAPABILITIES, THE HUMAN DEVELOPMENT APPROACH 33-34 (2011) (specifying ten central
capabilities at the heart of the capabilities approach).
45. See infra Section I.A.
46. See infra Section I.B.
47. See LASSWELL & MCDOUGAL, supra note 43, at 249 (“An important preliminary
contribution, in which most proponents of the frame joined, was in demythologizing the
positivist paradigm, and in demonstrating that logical derivation, when taken alone, is a most
inadequate instrument for the clarification of policy.”).
48. See id.
49. See id. at 119.
50. REISMAN, supra note 14, at 135.
51. See LASSWELL & MCDOUGAL, supra note 43, at 30.
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a functional perspective—law does not have a separate and
distinguishable substance from non-law, only a different function
within the broader array of social processes.52 Derisively, opponents
of legal realism have submitted that legal decisions are made not by
reference to black letter law, but what the judge ate for breakfast.53 Of
course, less derisively, US jurisprudence has long accepted with the
near canonization of Ronald Dworkin, a thinker with an ambivalent
relationship to legal realism, that social context is inextricably
intertwined with legal interpretation and application.54 It is such a less
radical claim to which the School subscribes.55
The focus upon social processes naturally entail the inclusion of
a wide array of inconsistent values of the various groups and
individuals in society that law must somehow manage to
accommodate.56 The School is clear about the fact that no single
denominator can be found by which law could harmonize these
52. See id. at 22-25.
53. Ronald A. Cass, Judging: Norms and Incentives of Retrospective Decision-Making,
75 B.U. L. REV. 941, 944 (1995) (“The polar case for such individual-oriented descriptions of
judicial decision-making is extreme legal realism, which supposes that judges' decisions
depend on a large number of factors – including what the judge ate for breakfast on the
morning of a decision – so numerous and relating to outcomes in so complex a manner as to
obscure the actual basis for decision.”). This is a caricature of legal realism—and that one that
most sophisticated adherents to the school reject. Victoria Nourse & Gregory Shaffer,
Empiricism, Experimentalism, and Conditional Theory, 67 SMU L. REV. 141, 145 (2014).
54. See GEORGE P. FLETCHER & STEVE SHEPPARD, AMERICAN LAW IN A GLOBAL
CONTEXT 72 (2005) (noting Dworkin’s role as an influential adversary of legal realism).
Compare Tom Lininger, On Dworkin and Borkin’, 105 MICH. L. REV. 1315, 1317 n.8 (2007)
(“An empirical study has shown that Dworkin is the most influential scholar in legal
philosophy today.”), with RONALD DWORKIN, LAW’S EMPIRE 225 (1986) (“The adjudicative
principle of integrity instructs judges to identify legal rights and duties, so far as possible, on
the assumption that they were all created by a single author – the community personified –
expressing a coherent conception of justice and fairness.”). Whether one views Dworkin as an
adversary of realism or a continuation of its insights, Dworkin has showcased that social
context and legal decision cannot meaningfully be separated.
55. The School has significant points of disagreement with Dworkin. LASSWELL &
MCDOUGAL, supra note 43, at 242. They agree, however, on important elements of the frame
how social processes and legal processes relate to one another. Michael Reisman, A
Jurisprudence from the Perspective of the “Political Superior,” 23 N. KY. L. REV. 605, 625
(1996) (“The responsible applier must be careful to avoid the nihilism of deconstructive
theories, the irresponsibility of theories that purport to liberate appliers from all social controls,
and the sterility (from this perspective) of a jurisprudence of strict obedience. Metaphors such
as Dworkin's ‘chain novel’ may express the spirit of the activity, but do not supply policy
guidelines for its execution.”). On an articulation of disagreement with some forms of realism
from Dworkin’s side, see Dworkin, supra note 27, at 15-17, 23.
56. See LASSWELL & MCDOUGAL, supra note 43, at 13; REISMAN, supra note 14, at
181, 185.
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different values.57 There is no logical derivation of the correct
answer.58 Instead, law becomes a tool for conflict resolution made
famous in Getting to Yes in that it seeks to find mutual gain by
balancing shared interests, dovetailing differing interests, and
sustainable apportionment of (joint) losses.59 Again, this frame is
sometimes derided by some as requiring the comparison of whether a
rock is heavier than a line is long.60 But again, US jurisprudence has
incorporated it in the most common place of judicial tools: the
balancing test.61
The School relevantly proposes that there are two modes of
participation in legal communication. The first is the textual-rulebased mode.62 This mode is the most familiar and communicates
simply about how we read and apply law, typically in the context of
legal dispute or litigation.63 This mode at first blush looks like an
adoption of a formalist or quasi-formalist frame.64 It varies from it by
insisting that the gathering of facts deemed relevant for determination
of the dispute, the demarcation and interpretation of legal rules
deemed triggered by these facts, and the final application of the law
so determined to the facts so gathered is heavily dependent upon the
broader social context in which the dispute takes place and to which it
makes reference.65 One might surmise that the recent marriage
equality decision is an example of just such an application of the
textual-rule-based mode.66
57. See LASSWELL & MCDOUGAL, supra note 43, at 13; REISMAN, supra note 14, at
181, 185.
58. See LASSWELL & MCDOUGAL, supra note 43, at 249.
59. See ROGER FISHER & WILLIAM URY, GETTING TO YES 72-77 (Bruce Patton ed., 3d
ed. 2011).
60. See, e.g., Bendix Autolite Corp. v. Midwesco Enter., 486 U.S. 888, 897 (1988)
(Scalia, J., concurring).
61. See Cass R. Sunstein, Incommensurability and Valuation in Law, 92 MICH. L. REV.
779, 856-59 (1994).
62. See REISMAN, supra note 14, at 177-83.
63. See id. at 176.
64. See id. at 177 (“Some scholars liken the application function in legal arrangements to
the decisions of a referee or umpire in a sports match.”).
65. See REISMAN, supra note 14, at 177-78.
66. See Obergefell v. Hodges, 135 S.Ct. 2584, 2608 (2015) (“It would misunderstand
these men and women to say they disrespect the idea of marriage. Their plea is that they do
respect it, respect it so deeply that they seek to find its fulfillment for themselves. Their hope is
not to be condemned to live in loneliness, excluded from one of civilization's oldest
institutions. They ask for equal dignity in the eyes of the law. The Constitution grants them
that right.”); accord W. Michael Reisman, Siegfried Wiessner & Andrew R. Willard, The New
Haven School: A Brief Introduction, 32 YALE J. INT’L L. 575, 576 (2007) (“A public order of
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The School further proposes a context-policy-based mode.67 This
mode is less familiar.68 It communicates about how the law should be
developed,69 typically though certainly not exclusively in the context
of legislation or codification of the law (such as in the context of
multilateral treaty drafters or the International Law Commission’s
work systematically to gather and develop international law),70
appraisal of the functioning of existing legal rules to determine
whether these rules should be terminated or modified (such as in the
context of current debates relating to investor-state dispute
settlement),71 or, in some instances, in the execution of broad
mandates such as the U.N. Security Council’s function to safeguard
international peace and security.72 This mode seeks to determine first
the ultimate goals the legal order aspires to follow in a given
situation,73 establish trends towards or away from those goals,74
deduce which factors were most relevant in past decisions involving
the same goals,75 establish the cost of doing nothing,76 devises
creative alternatives that minimizes as much as possible unwanted
consequences of potential actions and maximizes the goals in
question.77 In short, this mode turns on deeply prudential concerns
rather than principally interpretive concerns.78
2. Authority and Control
The core elements of the process of legal decision or
communication in both modes of principled decision-making are
human dignity is defined as one which approximates the optimum access by all human beings
to all things they cherish: power, wealth, enlightenment, skill, well-being, affection, respect,
and rectitude. This, in a nutshell, characterizes the contribution the New Haven School has
made to the law's academic and policy enterprise.”).
67. See REISMAN, supra note 14, at 183-90.
68. See id. at 173.
69. See id. at 170-71.
70. See id. at 173.
71. See id.
72. See id. at 201.
73. Id. at 185.
74. Id.
75. Id. at 186.
76. Id.
77. Id.
78. See Joshua P. Davis, Legality, Morality, Duality, 2014 UTAH L. REV. 55, 92 (2014)
(discussing the role of prudential concerns while employing a similar dualist frame of
reference to modes of legal decision-making).
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control and authority.79 Both are empirically observable features of
the social process.80 Control refers to the “effective participation in
the making and enforcing of decision; choice in outcome must be
realized in significant degree in practice.”81 It relates to “operations,”
which are ultimately a question of power, or, more precisely, the
application of power.82
Authority refers to the level of predictability or anticipation of
uses of power, or control operations, in society.83 The School defines
authority as “participation in decision in accordance with community
perspectives about who is to make what decisions, by what criteria,
and by what procedures; the reference is empirical, to a certain
frequency in the perspectives of people who constitute a given
community.”84 Authority thus makes relevant “perspectives.”85 These
perspectives refer to community “expectations about both authority
and control, and inquiry will be made about both patterns of authority
and patterns of control in fact.”86
Authority, thus, does not refer to abstract moral or metaphysical
principles of right and wrong. Instead, authority answers the down-toearth question of whether, for instance, a police officer has the
“authority” to exit a car and forcibly throw the driver to the ground
for failing extinguish a cigarette and “back-talking,” having stopped
the driver for failure to indicate a turn;87 do we as a society consider
79. The New Haven School: A Brief Introduction, supra note 66, at 576 (“The New
Haven School defines law as a process of decision that is both authoritative and controlling.”).
80. See LASSWELL & MCDOUGAL, supra note 43, at 26.
81. Id.
82. Myres S. McDougal, Legal Bases for Securing the Integrity of the Earth-Space
Environment, 8 J. NAT. RESOURCES & ENVTL. L. 177, 182 (1992) (“[B]ehavioristic operations,
the choices in fact made and enforced by threats of severe deprivations or promises of extreme
indulgences.”)
83. LASSWELL & MCDOUGAL, supra note 43, at 26.
84. Id.
85. See id.
86. Id. at 24.
87. See Holly Yan et al., Sandra Bland’s Family ‘Infuriated’ at Video of Her Arrest,
CNN (July 23, 2015), http://www.cnn.com/2015/07/22/us/texas-sandra-bland-arrest/.
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this aberrant behavior88—whether or not, on some interpretation of
law, the officer is broadly empowered to do so.89
Decision without control lacks legal quality because it is simply
pretense.90 It has no means of finding application to the real world.91
It is the ultimate form of wishful thinking.92 This form of wishful
thinking might over time of course alter the reality which it describes
if it is sufficiently prevalent.93 In such instances, it simply
reconstructs normative communication until even the actors with
control themselves recoil from exercising power in a certain way.94
Such instances are exceedingly rare.
On the other hand, decisions which lack authority are simply
premised in naked power.95 They are not accepted or integrated into
the social matrix of reciprocal decision-making that make up our dayto-day lives in as much as they do not become part of the perspectives
or expectations of how control will be exercised in the relevant
society.96 By lacking authority, these decisions are ultimately not
predictable.97 By being unpredictable it is further not possible to
provide them with any form of normative superstructure that might
explain or justify the use of power to make effective a decision by
means of a control apparatus.98 The assertion of control without
88. Interestingly, in the case of Sandra Bland, the most firebrand presidential contender
for the Republican Party, Donald Trump, addressed the incident through precisely this lens.
Janell Ross, Donald Trump’s Intriguing Comments about Sandra Bland. Yes, Really, WASH.
POST, July 23, 2015, http://www.washingtonpost.com/blogs/the-fix/wp/2015/07/23/donaldtrumps-intriguing-comments-about-sandra-bland-yes-really/.
89. See Richard Winton, Can a Police Officer Order You Out of Your Car? Experts
Weigh in on Sandra Bland Case, L.A. TIMES, July 22, 2015, http://www.latimes.com/nation/
la-na-sandra-bland-arrest-experts-20150722-story.html (“He certainly has the legal authority to
get her to step out of the car,” Stoughton said. “But in this case, if he is exercising his authority
because she [is] defying his direction to put out the cigarette, then that is more based on his
ego than public safety. Just because it is legal to order her out of the car doesn't make it a
professional approach in modern policing.”).
90. See LASSWELL & MCDOUGAL, supra note 43, at 26.
91. See id.
92. See id.
93. See Myres McDougal & W. Michael Reisman, The Prescribing Function in World
Constitutive Process: How International Law Is Made, 6 YALE STUD. WORLD PUB. ORD. 250,
251 (1980) (“In certain marginal situations, authority may constitute the sole base value for a
particular process of prescription.”).
94. See id.; see also FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALS passim
(Walter Kaufmann trans., 1989).
95. LASSWELL & MCDOUGAL, supra note 43, at 26.
96. See id. at 24.
97. See id.
98. See id.
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authority is the breaking down of social discourse until its ultimate
dissolution.99
3. Constitutive and Public Order Processes
The New Haven School is express that it views authoritative
decision as part of an iterative social process. Thus,
Law will be regarded not merely as rules or as isolated decision,
but as a continuous process of authoritative decision, including
both the constitutive and public order decisions by which a
community’s policies are made and remade. The processes of
authoritative decision in any particular community will be seen
as an integral part, in an endless sequence of causes and effects,
of the whole social process of that community. Every particular
community will, finally, be observed to affect, and be affected
by, a whole complex of parallel and concentric, interpenetrating
communities, from local through regional to global.100
In this process, pride of place is given to constitutive process as
opposed to public order processes. These are each defined in turn as
follows:
the ‘constitutive process’ of a community may be described as
the decisions which identify and characterize the different
authoritative decision makers, specify and clarify basic
community policies, establish appropriate structures of authority,
allocate bases of power for sanctioning purposes, authorize
procedures for making the different kinds of decisions, and
secure the continuous performance of all the different kinds of
decision functions . . . necessary to making and administering
general community policy.101
In turn, “basic community policies” refer to “basic values that ought
to inform the more general community” as determined by the relevant
perspectives.102 In contrast, “the ‘public order’ decisions of a
community may be described as those, emerging in continuous flow
99. See JACQUES DERRIDA, DE LA GRAMMATOLOGIE 18 (1967).
100. LASSWELL & MCDOUGAL, supra note 43, 24-25.
101. Id. at 28.
102. Winston P. Nagan, Economic Sanctions, U.S. Foreign Policy, International Law
and the Anti-Apartheid Act of 1986, 4 FLA. INT’L L.J. 85, 97 (1988); see Winston P. Nagan &
Joshua L. Root, The Emerging Restrictions on Sovereign Immunity: Peremptory Norms of
International Law, the U.N. Charter, and the Application of Modern Communications Theory,
38 N.C. J. INT’L L. & COM. REG. 375, 386 (2013) (explaining the relationship between
perspectives and basic community policies in the New Haven School).
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from the constitutive process, which shape and maintain the protected
features of the community’s various value processes.”103
B. Professor Reisman’s Lawlessness Argument
Professor Reisman submits that within such an authoritative
process of decision making conceived by reference to the pillars laid
out in Part I.A, the law never runs out.104 He explains the appearance
of lawlessness by reference to four types of constitutive
configurations: (1) constitutive processes without hierarchical
institutions, (2) constitutive processes with manifestly ineffective
hierarchical institutions, (3) constitutive processes with partly
effective hierarchical institutions, and (4) constitutive processes with
highly effective hierarchical institutions.105 A constitutive process
relying solely upon ineffective hierarchical institutions relies entirely
upon unilateral action determined by the law of the strongest.106 A
constitutive process relying upon ineffective hierarchical structures
relies upon operational codes of a shadow process behind the myth
system of an officially-sanctioned constitutive process; in short, the
greater this gulf, the closer we are to confirming the conspiracy
theorist’s warning that functions of government are carried out by
figures unauthorized to carry them out and no formal authority to stop
them.107 A constitutive process with partly effective hierarchical
institutions is built around a system of apparent complete hierarchy—
but permits a number of exceptions in which a principal means of
vindication of rights is unilateral action such as, for instance, the right
of self-defense.108 A completely effective hierarchical system
displaces even these spheres of unilateral empowerment.109
Lawlessness appears problematic in only two of the four
configurations, which Professor Reisman calls offshore zones—
constitutive processes with manifestly ineffective hierarchical
institutions and constitutive processes with partly effective
hierarchical institutions.110 Lawlessness—or wanton unilateral
103.
104.
105.
106.
107.
108.
109.
110.
LASSWELL & MCDOUGAL, supra note 43, at 28.
See REISMAN, supra note 14, at 21.
Id. at 117.
See id. at 118.
See id. at 118-19.
See id. at 121.
See id. at 122-23.
See id. at 20, 123.
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action—is not a problem in the first configuration lacking hierarchical
institutions because unilateral action is all there is; law is defined by
strength and all participants in such a social process, hypothetically,
expect as much.111 In the fourth configuration, lawlessness has no
chance to arise as unilateral action is simply unlawful and will be
swiftly treated as such.112 Where the problem does arise, Professor
Reisman diagnoses that “the uncertainty with regard to the lawfulness
of unilateral action or its normative ambiguity arises from the
cognitive dissonance caused by the realization that the constitutive
process to which the prerogatives of action has been assigned is either
generally or momentarily unable to implement rights which it is
supposed to have guaranteed. . . .”113
The lawlessness problem in the second and third configurations
is ultimately resolved by reference to the policy-context-based mode
of decision to justify or condemn unilateral action.114 Where there is
no hierarchical institution that would prescribe certain conduct that
could be applied in a textual-rule-based mode of decision-making, the
question is one of making new rules for the case and further develop
the normative fabric for future decisions.115 As goals can always be
extrapolated and strategies developed to make effective those goals,
law can self-propel itself out of any morass.116 Just like a language, it
incorporates and adapts with blinding speed to new social phenomena
precisely because law as a social process is inextricably intertwined in
the process of creating these new social realities.117 This, of course,
will lead to a certain amount of indeterminacy (the enterprise is
creative and balancing multiple alternative values at the same time –
permitting reasonable minds to differ and differ violently as to the
appropriate strategy to adopt).118 But this indeterminacy is accounted
111. See id. at 118, 123.
112. Id. at 123.
113. Id.
114. See id. at 190-91 (“As general matter, when controlling practice is distinct from the
institutions of formal authority, as is often the case in the offshore zones, functional analysis is
required. The international lawyer, operating in the policy-context-based mode, needs a more
explicit conceptual technique for mapping the relevant processes, the most critical of which
may not conform to the myth system.”).
115. See id. at 170, 190-91.
116. See id. at 188 (“These intellectual constructs of alternative futures serve to indicate
what steps should be taken to increase the probability of the eventuation of a preferred future
while minimizing the likelihood of the eventuation of the dystopias.”).
117. See Ludwig Wittgenstein, Philosophical Investigations ¶ 18, in 1 LUDWIG
WITTGENSTEIN, WERKAUSGABE 225, 245 (Joachim Schulte ed., 1997).
118. See REISMAN, supra note 14, at 188.
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for within the capacious confines of law (and its policy-context-based
mode).119
Given the ultimate commitment to the deeply constitutive value
of human dignity, there is much to commend this approach.120 It
keeps law (and lawyers) engaged in international crisis deescalation.121 It provides a language, or appropriately a structure,
forum, or grammar, in which to collaborate across frontlines towards
a common solution.122 And it creates a meaningful and meaninggenerating buffer to rash and perhaps irremediable unilateral action
by one of the members of the international community thinking itself
at liberty to act with impunity by the sheer absence of law to stop it.123
As the remainder of this Article will discuss, as strong and desirable
as this conception is, it has an Achilles heel: it operates only as long
as there is a robust web of social processes to support it.124 As the
ISIL crisis showcases, this web of social processes is far more fragile
than one might hope—with potentially catastrophic consequences.
II. THE ISIL PROBLEM
ISIL is a loose military and quasi-political network organized
around an extreme form of Wahhabi dogma.125 The group originally
119. See id.
120. See The New Haven School: A Brief Introduction, supra note 66, at 576.
121. See REISMAN, supra note 14, at 477.
122. See Richard B. Bilder, The Office of the Legal Advisor: The State Department
Lawyer and Foreign Affairs, 56 AM. J. INT'L L. 633, 680 (1962).
123. See REISMAN, supra note 14, at 21.
124. One notes that the first scenario of unorganized and non-hierarchical constitutive
structures functions only for so long as one assumes that such structures can in fact maintain
authoritative decisions at all, i.e., to the extent one presumes that social processes will form in
a world of such total instability. REISMAN, supra note 14, at 118. One can seriously call such
an assumption into question. And if the effective use of naked power erodes both authority and
the social fabric, it is simply not true on the terms of The Quest for World Order and Human
Dignity in the Twenty-first Century that authoritative decisions can be furnished for any
situation. See id. at 21.
125. See David D. Kirkpatrick, ISIS’ Harsh Brand of Islam Is Rooted in Austere Saudi
Creed, N.Y. TIMES, Sept. 24, 2014, http://www.nytimes.com/2014/09/25/world/middleeast/
isis-abu-bakr-baghdadi-caliph-wahhabi.html (“For their guiding principles, the leaders of the
Islamic State, also known as ISIS or ISIL, are open and clear about their almost exclusive
commitment to the Wahhabi movement of Sunni Islam.”); Graeme Wood, What ISIS Really
Wants, ATLANTIC, March 2015, http://www.theatlantic.com/features/archive/2015/02/whatisis-really-wants/384980/. For a discussion of the critical reception of Wood’s Atlantic article
in Islamic studies circles, see Jack Jenkins, What the Atlantic Gets Dangerously Wrong About
ISIS and Islam, THINK PROGRESS (Feb. 18, 2015), http://thinkprogress.org/world/2015/02/18/
3624121/atlantic-gets-dangerously-wrong-isis-islam/.
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formed in April 2004 as an al-Qaida affiliate to attack United States
and coalition forces in Iraq.126 The group was founded by Abu
Mus’ab al-Zarqawi.127 Mr. al-Zarqawi was not himself an Iraqi
national.128 Membership in his group similarly drew on significant
international membership.129 This raised issues of identity and
purpose of the group at a relatively early stage.130 The original goal of
the group was to pressure the United States and its allies to leave
Iraq.131 Al-Zarqawi ultimately led one of the most deadly and brutal
terrorists groups in Iraq.132 Al-Zarqawi was killed by a US airstrike
north of Baghdad in June 2006.133
Following al-Zarqawi’s death, the group eventually came to be
led by Abu Bakr al-Baghdadi.134 Al-Baghdadi, born Ibrahim Awwad
Ibrahim Ali al-Badri al-Samarrai, is an Iraqi national.135 He was
initially deemed comparatively insignificant—reports tell of his
detention in 2005 and release by US forces in 2009.136 Al-Baghdadi
rose to a leadership position in April 2010 following the deaths of the
126. NATIONAL COUNTERTERRORISM CENTER, Al-Qa’ida in Iraq (AQI), http://www.
nctc.gov/site/groups/aqi.html (last visited Nov. 13, 2015).
127. Id.
128. Lee Hudson Teslik, Profile: Abu Musab al-Zarqawi, COUNCIL ON FOREIGN REL.
(June 8, 2006), http://www.cfr.org/iraq/profile-abu-musab-al-zarqawi/p9866.
129. Mary Anne Weaver, The Short, Violent Life of Abu Musab al-Zarqawi, ATLANTIC,
July 2006, http://www.theatlantic.com/magazine/archive/2006/07/the-short-violent-life-ofabu-musab-al-zarqawi/304983/ (noting the international nature of the force recruited by alZarqawi’s network).
130. See Al-Zarqawi’s Successor Chosen, MILITARY.COM (June 12, 2006),
http://www.military.com/NewsContent/0,13319,100732,00.html (noting that “there were
tensions between homegrown Iraqi insurgents and the Jordanian-born al-Zarqawi over
strategy, and U.S. and Iraqi officials sought to fuel the differences by painting al-Zarqawi as a
foreign killing Iraqis for his own purposes”).
131. See Al-Qa’ida in Iraq, supra note 126.
132. See generally Laura Smith, Timeline: Abu Musab al-Zarqawi, GUARDIAN, June 8,
2006, http://www.theguardian.com/world/2006/jun/08/iraq.alqaida1 (detailing the killings
attributed to al-Zarqawi’s group).
133. See John F. Burns, U.S. Strike Hits Insurgent at Safehouse, N.Y. TIMES, June 8,
2006, http://www.nytimes.com/2006/06/08/world/middleeast/08cnd-iraq.html.
134. See Janine Di Giovanni, Who Is ISIS Leader Abu Bakr Al-Baghdadi?, NEWSWEEK,
Dec. 8, 2014, http://www.newsweek.com/2014/12/19/who-isis-leader-abu-bakr-al-baghdadi290081.html.
135. See id.
136. See Ruth Sherlock, How a Talented Footballer Became World’s Most Wanted Man,
Abu Bakr al-Baghdadi, TELEGRAPH, Nov. 11, 2014, http://www.telegraph.co.uk/news/
worldnews/middleeast/iraq/10948846/How-a-talented-footballer-became-worlds-most-wantedman-Abu-Bakr-al-Baghdadi.html.
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group’s previous leaders.137 At this time, the group’s strategy became
increasingly more violent, launching what a U.N. Security Council
committee called “a wave of AQI/ISI suicide attacks [which] began in
Mosul, Iraq, [and] which culminated in over 70 deaths.” Further, the
group “pledged to carry out 100 attacks across Iraq in retaliation for
Bin Laden’s death.”138
ISIL rose to prominence outside of Iraq particularly in the
context of the Syrian Civil War.139 This civil war began as an
outgrowth of the larger Arab Spring movement.140 In contrast to the
results of the Arab Spring movement in some other countries, Syrian
President Bashar al-Assad did not ultimately relinquish power but
instead began a military campaign against the movement to remove
him from office.141 The use of military force by Syria led to the
formation of a large variety of insurgent military groups fighting the
Syrian government.142
137. See U.N. Security Council Al-Qaida Sanctions Committee, Narrative Summary of
Reasons for Listing Ibrahim Awwad Ibrahim Ali Al-Badi Al Samarrai (June 3, 2014),
http://www.un.org/sc/committees/1267/
NSQDi299E.shtml.
138. Id.
139. Even prior to the Syrian Civil War, the group was internationally active. During alZarqawi’s leadership, the group had an international profile of its own, noted even to rival al
Qaeda’s. See Bruce Crumley, Is Zarqawi the New Bin Laden?, TIME, Aug. 28, 2005, http://
content.time.com/time/magazine/article/0,9171,1098950,00.html. The current prominence of
ISIL, however, came only following the outbreak of the Syrian conflict and the petri dish it
provided to a group like ISIL. At this stage, the Yemeni conflict promises to provide a similar
safe haven to ISIL and other terrorist groups. See Zachary Laub, A Guide to ISIS, the Group
That’s Tearing Up Iraq, DEFENSE ONE (June 13, 2014), http://www.defenseone.
com/threats/2014/06/guide-isis-group-s-tearing-iraq/86470/ (noting that “[m]eanwhile, in 2012
the group adopted its new moniker, ISIS (sometimes translated as Islamic State of Iraq and the
Levant, or ISIL) as an expression of its broadened ambitions as its fighters have crossed into
neighboring Syria to challenge both the Assad regime and secular and Islamist opposition
groups there.”).
140. See, e.g., Ayodeji K. Perrin, Introduction to the Special Issue on the Arab Spring,
34 U. PA. J. INT’L L. i, iii (2013) (noting the relationship between the Arab Spring and the
Syrian uprising); Khaled Abou El Fadl, The Praetorian State in the Arab Spring, 34 U. PA. J.
INT’L L. 305, 306 (2013) (analyzing the similarity in power structure in place in countries with
Arab Spring revolutions).
141. See Syria: The Story of the Conflict, BBC (Oct. 9, 2015), http://www.bbc.com/
news/world-middle-east-26116868.
142. See generally Guide to the Syrian Rebels, BBC (Dec. 13, 2013), http://www.bbc.
com/news/world-middle-east-24403003 (noting that “[t]here are believed to be as many as
1,000 armed opposition groups in Syria” at that point in time and introducing the key groups).
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The conflict in Syria led to a significant number of killed and
displaced Syrian citizens and residents.143 Killings were targeted to
decapitate the insurgent movements or loyalist strongholds on the
ground.144 Killings by Syrian forces in particular also could be
indiscriminate—using chemical weapons or other munitions intended
to maximize damage to as a large group of the population as
possible.145
ISIL entered the Syrian theater in 2011.146 Al-Baghdadi
instructed Abu Mohammed al-Jawlani to establish a Syrian
presence.147 ISIL stepped into the conflict and fast became one of the
more successful groups in the region, fighting back Syrian forces and
holding territory in Syria proper.148 Following upon its successes in
Syria, ISIL also continued its efforts in Iraq.149 ISIL secured defeats
of the Iraqi army in the north and west of Iraq.150 At one point, ISIL
143. See Syrians Flee Idlib, Fearing Government Reprisals, ASSOC. PRESS (March 29,
2015) (placing the current number of dead as a result of the Syrian civil war at 220,000 and
recounting the displacement occurring as a result of the conflict).
144. See Sylvia Westall, Syrian Military on Offensive as Conflict Enters Fifth Year,
REUTERS (Mar. 15, 2015), http://www.reuters.com/article/2015/03/15/us-mideast-crisis-syriasouth-idUSKBN0MB0BI20150315 (providing a current snapshot of the fighting).
145. See Rick Gladstone, Militants Add Cluster Bombing to Tactics, Rights Group Says,
N.Y. TIMES, Sept. 1, 2014, http://www.nytimes.com/2014/09/02/world/middleeast/militantsadd-cluster-bombing-to-tactics-rights-group-says.html (reporting use of “cluster bombs, the
banned weapons that kill and maim indiscriminately” by ISIL); Rick Gladstone, Heavy Use of
Banned Cluster Bombs Reported in Syria, N.Y. TIMES, Aug. 27, 2014, http://www.nytimes.
com/2014/08/28/world/middleeast/monitor-reports-heavy-cluster-bomb-use-in-syria.html
(reporting on significant use of cluster munitions by the Syrian government); Lisa Lambert,
U.S. ‘Deeply Disturbed’ by Reports of Chemical Weapons in Syria: Kerry, REUTERS (Mar. 19,
2015), http://www.reuters.com/article/2015/03/19/us-syria-crisis-kerry-idUSKBN0MF20Q2
0150319 (noting renewed allegations of use of chemical weapons by Syrian forces following a
2013 agreement by Syria to destroy its chemical weapons stockpile).
146. See U.N. Security Council Al-Qaida Sanctions Committee, supra note 137
(reporting that ISIL entered the Syrian conflict in 2011).
147. See id.
148. See Some Signs of Tension Emerge Among Islamic State Militants, ASSOC. PRESS
(Feb. 19, 2015) (noting that “[t]he extremists remain a formidable force, and the group's hold
on about a third of Iraq and Syria remains firm.”).
149. See Ghazwan Hassan, Iraq Insurgents Take Saddam’s Home Town in Lightning
Advance, REUTERS (June 11, 2014), http://www.reuters.com/article/2014/06/12/us-iraqsecurity-idUSKBN0EM11U20140612 (reporting the fall of Tikrit to ISIL); Ahmed Rasheed &
Isabel Coles, Obama Warns of U.S. Action as Jihadists Push on Baghdad, REUTERS (June 12,
2004), http://www.reuters.com/article/2014/06/13/us-iraq-security-idUSKBN0EO15R201406
13 (detailing ISIL advances in Northern Iraq); Deb Riechmann, Iraq City Falls Fully Into
Hands of Al-Qaida Group, ASSOC. PRESS (Jan. 4, 2014) (reporting the fall of Fallujah to ISIL).
150. See Hassan, supra note 149 (reporting the extent of ISIL conquests).
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advanced close to the Iraqi capital, Baghdad.151 As ISIL moved
through Iraq, it similarly sought to control territory in its own right.152
ISIL’s rule over the territories it held is particularly brutal.153
ISIL has been implicated in genocide, mass murder, the slave trade,
and torture.154 The atrocities committed by ISIL make clear the
extreme predicament in which those subject to its rule find
themselves.155 The acts of ISIL do not follow any standard of legality
and appear to be the very opposite of acts in compliance with the rule
of law given their arbitrary and barbaric nature—in many instances
subjecting even children to unspeakable cruelty.156 As detailed further
in this Article, these atrocities have led to a mass exodus under
unspeakable conditions of the populations threatened by ISIL.
At the same time, it is similarly clear that there is no readily
effective means to counter ISIL in place. ISIL has successfully
rebuffed the traditional government forces of both Iraq and Syria.157 It
151. Id. (“Having also taken two small towns north of Baghdad, Dhiluiya and Yathrib,
the insurgents are in control of between 10 and 15 pct of Iraqi territory, excluding Kurdistan,
and have led many Iraqis to fear they have the capital, Baghdad, in their sights.”).
152. See id.
153. Abuse ‘Rife in Secret Al-Qaeda Jails in Syria’, BBC (Dec. 19, 2013),
http://www.bbc.com/news/world-middle-east-25440381 (reporting that according to Amnesty
International, “ISIS forces had committed numerous serious rights abuses, including some that
amount to war crimes, such as abductions, arbitrary detention, torture and other ill-treatment,
and unlawful killings.”).
154. U.N. Human Rights Council, Rep. of the U.N. High Commissioner for Human
Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the SoCalled Islamic State in Iraq and The Levant and Associated Groups, ¶ 16, U.N. Doc.
A/HRC/28/18 (Mar. 13, 2015), www.ohchr.org/EN/HRBodies/HRC/RegularSessions/
Session28/Documents/A_HRC_28_18_AUV.doc (“The mission gathered reliable information
about acts of violence perpetrated against civilians because of their affiliation or perceived
affiliation to an ethnic or religious group. It is reasonable to conclude that some of these
incidents, considering the overall information, may constitute genocide. Other incidents may
amount to crimes against humanity and war crimes. Ethnic and religious groups targeted by
ISIL include Yezidis, Christians, Turkmen, Sabea-Mandeans, Kaka’e, Kurds and Shi’a.”)
155. See generally id.
156. Id. ¶ 35 (“Accounts indicate that ISIL views captured women and children as spoils
of war which they own. Numerous interviews conducted with Yezidi women and girls who
fled ISIL captivity between November 2014 and January 2015 provided reliable information of
killings, widespread and systematic enslavement, including selling of women, rape, and sexual
slavery, forced transfer of women and children and inhuman and degrading treatment. Many of
the women interviewed were able to identify the origin of their ISIL captors, belonging to a
wide range of countries.”).
157. See Kareem Fahim, Signs of a Push Against ISIS, Amid Doubts on Iraqi Troops,
N.Y. TIMES, Feb. 13, 2015, http://www.nytimes.com/2015/02/14/world/middleeast/amid-talkin-iraq-of-anti-isis-push-doubts-about-troops-readiness.html; Tom Perry & Mariam Karouny,
Islamic State in Syria Seen Under Strain but Far From Collapse, REUTERS (Feb. 6, 2015),
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is thus not subject to easy ouster from the territory it holds.158 Any
such action when successful requires significant foreign military aid
and assistance from the United States and—according to reports—
Iran.159 Moreover, at this point additional actors have entered the
scene in addressing the chaos in the region, with Russia and Iran
sending forces and China contemplating to do the same.160
ISIL’s strategic use of violence particularly against fellow
Muslims caused al-Qaida to sever ties with ISIL.161 This severing of
ties is not a matter of political convenience but represents a
significant dogmatic difference on how al-Qaida and ISIL view the
role of violence. The extreme Wahhabi dogma to which ISIL
subscribes views violence as “an end in itself” rather than a means to
the end of ejecting unbelievers from Islamic countries—and most
importantly the Middle East.162 In other words, ISIL is more
reactionary in theological and political outlook than al-Qaida to the
point of creating irreconcilable dogmatic differences with its prior
umbrella organization.
III. LAWLESSNESS ON THE GROUND
The particular circumstances surrounding the rise of ISIL
showcase trenchantly how lawlessness evolves and deepens from a
pragmatic to a functional problem. As explained below, this evolution
begins with a temporal loss of control towards a full loss of structures
http://www.reuters.com/article/2015/02/06/us-mideast-crisis-syria-islamicstate-insidUSKBN0LA0NF20150206 (noting the inability of Iraqi army units to defeat ISIL, the
current state of ISIL’s Syrian occupied territory, and the “firm grip over its Syrian stronghold
in Raqqa province”).
158. See supra note 156.
159. See Helene Cooper, U.S. Strategy in Iraq Increasingly Relies on Iran, N.Y. TIMES,
Mar. 5, 2015, http://www.nytimes.com/2015/03/06/world/middleeast/us-strategy-in-iraqincreasingly-relies-on-iran.html (reporting that “[t]he only way in which the Obama
administration can credibly stick with its strategy is by implicitly assuming that the Iranians
will carry most of the weight and win the battles on the ground”).
160. Neil MacFarquhar, Assad makes Unannounced Trip to Moscow to Discuss Syria
with Putin, N.Y. TIMES, Oct. 21, 2015, http://www.nytimes.com/2015/10/22/world/middleeast/
assad-putin-syria-russia.html; Rob Virtue, Putin’s Boost in Battle Against ISIS: China
Preparing to ‘Team up with Russia in Syria,’ EXPRESS (Oct. 8, 2015), http://www.express.co.
uk/news/world/610286/China-preparing-to-team-up-with-Russia-in-Syria-Boost-for-Putin-inbattle-against-ISIS.
161. Al-Qaeda Disowns ISIL Rebels in Syria, AL JAZEERA (Feb. 3, 2014),
http://www.aljazeera.com/news/middleeast/2014/02/al-qaeda-disowns-isil-rebels-syria20142385858351969.html.
162. See Kirkpatrick, supra note 125.
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capable of supporting authoritative decisions. This Part shows the key
features of each stage of lawlessness and how it can quickly develop
from one stage to the next.
A. The Pragmatic Problem
The first form in which lawlessness can manifest itself is
pragmatic lawlessness. There is “rampant misbehavior.”163 Such
rampant misbehavior occurs particularly if groups or individuals
destroy or misappropriate property, or, in severe cases, do bodily
harm or kill members of the local population.164 What distinguishes
rampant misbehavior as a state of pragmatic lawlessness from the
simple commission of a crime is its scope and duration.165 For a
relevant period of time, the responsible authorities are not able to stop
or curb the misbehavior in question.166
Pragmatic lawlessness concerns simply the loss of control or
power over a specific and important area for a short but significant
period of time.167 The relevant authorities are deprived of the physical
ability to regulate in the area.168 The authoritative expectation remains
that the lawless actors will in fact be held to account of their actions
for violations of the relevant local law.169 This expectation is typically
backed by a long memory of similar prosecutions in the past.170
Tracking the distinctions in Professor Reisman’s Quest for
World Order and Human Dignity, pragmatic lawlessness exists
because any legal system is to a point reliant upon only partly
163. Paul H. Robinson, Natural Law & Lawlessness: Modern Lessons from Pirates,
Lepers, Eskimos, and Survivors, 2013 U. ILL. L. REV. 433, 436 (2013) (“The term
‘lawlessness’ has two quite different meanings. It is used to refer to rampant misbehavior and
also, less commonly, to situations in which there exists no governing legal system.”).
164. For a discussion of examples see Susan S. Kuo, Bringing in the State: Toward a
Constitutional Duty to Protect from Mob Violence, 79 IND. L.J. 177, 224 (2004).
165. See id.
166. See id.
167. See REISMAN, supra note 14, at 105.
168. In the sense that the state is no longer able to deliver (or control) minimum order in
that area. See LASWELL & MCDOUGAL, supra note 43, at 153.
169. See Stuart P. Green, Looting, Law, and Lawlessness, 81 TUL. L. REV. 1129, 1151
(2007) (discussing the concept of looting in the law in post-Katrina New Orleans).
170. See Corinna Barrett Lain, Countermajoritarian Hero or Zero? Rethinking the
Warren Court’s Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1448-49
(2004) (detailing the Court’s response to 1968 riots and critiquing the response as too focused
on a law-and-order mentality).
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effective hierarchical constitutive configurations.171 In other words,
even in the most developed of legal systems, self-defense and defense
of property are affirmative defenses to criminal prosecutions even for
manslaughter or murder.172 Unilateral action is permitted because the
state (thankfully) is not equipped with a “Precrime squad” capable of
stopping each and every crime before it occurs.173
For a time, the acts of ISIL exhibited typical signs of pragmatic
lawlessness. Its actions could not be stopped by the relevant
municipal authorities in either Syria or Iraq.174 This included both
military forces of the respective governments, as well as other
security forces that ordinarily would have responded to reports of a
crime.175 It is further significant that ISIL’s actions are exceptionally
brutal and further uniquely arbitrary.176 From the point of view of
those suffering its rule, it is thus not always clear how they are to
behave to avoid the most gruesome forms of torture, rape,
enslavement, and execution.177
B. The Formal Issue
The pragmatic problem is not the only problem. The issue is not
only that there is no de facto governmental authority that could stand
up to ISIL’s lawlessness as of right now.178 ISIL provides a test case
for a different form of lawlessness—one when there is no satisfying
formal answer to re-establishment of lawful rule. In this case, the
171. See REISMAN, supra note 14, at 20 (“In practice, however, except for those systems
which are completely totalitarian, legal reach is patchy.”).
172. See generally Ray Taylor et al., Self-Defense in Homicide Cases, 42 AM. JURIS.
TRIALS 151 (1991).
173. See Minority Report Plot Synopsis, IMDB, http://www.imdb.com/title/tt0181689/
synopsis (last visited Oct. 29, 2015).
174. See supra Part II.
175. See supra Part II.
176. See supra Part II.
177. See Abuse ‘Rife in Secret Al-Qaeda Jails in Syria’, supra note 153 (“Former
detainees accused him of presiding over grotesquely unfair trials lasting no more than a few
minutes, and of handing down death penalties which were subsequently carried out.”); Simon
Tomlinson & Amy White, ‘This Is Our Football, It’s Made of Skin #World Cup:’ After
Posting Sickening Beheading Video of Iraqi Policeman, ISIS Boast of Slaughtering 1,700
Soldiers, DAILY MAIL (June 13, 2014), http://www.dailymail.co.uk/news/article2656905/ISIS-jihadists-seize-two-towns-bear-Baghdad-U-S-tanks-helicopters-stolen-fleeingwestern-trained-Iraqi-forces.html (describing videos posted by ISIL in which fighters
indiscriminately machine gun motorists and pedestrians in conquered territories).
178. See supra Section I.B.
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actor who is formally supposed to return lawful rule to the territory in
question is itself lawless.179
The formal perspective thus does not look to the current state of
affairs on the ground but rather looks to a hypothetical.180 If the
current pragmatic lawlessness subsides, whose sovereignty is
implicated?181 This sovereign’s laws remain formally applicable,
meaning that the goal is simply to push back pragmatic lawlessness
and return the area in question to the lawful rule of that formally
applicable legal system—and do so with its consent.182
In the context of the formal perspective of lawlessness, the issue
at hand must be carefully drawn. The point of formal lawlessness is
not that a state as a legal fiction has failed—an issue as to which there
has been significant discussion in the literature.183 Rather, the
insightful distinction drawn by Judge Crawford in The Creation of
States in International Law is sufficient to create the formal
lawlessness problem:
The perils of the expression [failed state] go back to a conceptual
confusion at its core. The situations described by some writers as
‘failed States’ are, evidently, crises of government or, if the
vaguer term be preferred, governance. None of the situations so
described – Somalia, the Congo, Liberia, etc. – has involved the
extinction of the State in question, and it is difficult to see what
possible basis there could be for supposing otherwise. No doubt
in many cases the regime has failed – either in the narrow sense
of the group of thugs and cronies controlling the Presidential
palace or in the broader sense of the governmental system, civil
service, army, opposition and all.184
The legal fiction of statehood is less important in the context of
formal lawlessness than the problem of failed governance.185 A failure
179. See supra Section I.A.
180. See Brian Finucane, Fictitious States, Effective Control, and the Use of Force
Against Non-State Actors, 30 BERKELEY J. INT’L L. 35, 58-61 (2012) (discussing the
unsuccessful invocation by Uganda of a right of self-defense against non-state actors in DRC).
181. See id.
182. See id.
183. See JAMES R. CRAWFORD, THE CREATION OF STATES IN INTERNATIONAL LAW
719-23 (2006).
184. Id. at 721-22 (emphasis in original).
185. See Norman W. Spaulding, Independence and Experimentalism in the Department
of Justice, 63 STAN. L. REV. 409, 411 (2011) (distinguishing between “common lawlessness”
and “lawlessness cutting to foundational promises of liberal democratic governance” in the
context of the anti-terrorism policies instituted during the Bush administration).
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of the governmental system in the relevant area means that on a
formal level, it is not only true that the actors effectively in charge of
the area are themselves lawless, but that there is no government to
which one could look for the re-introduction of order once bad nonstate actors in question have been expelled.186 In this context, the
fiction that the bad actors were always subject to some (municipal)
law that, though under-enforced, could be used as a measure of their
conduct in the future fairly gives out.187
In other words, the formal perspective presents a second problem
logically unrelated to the pragmatic perspective. The pragmatic
perspective demonstrates that the bad (non-state) actor responsible for
lawlessness has to be expelled to reintroduce the protections of the
rule of law to the population in question.188 The formal perspective
adds that the governance structures that must step in the bad actor’s
place still remain to be built.189 There is no sovereign who could
immediately fill the void.190
The distinction drawn at the formal level suggests that municipal
law is a myth not just from the perspective that it is ineffective, or not
in control.191 It is a myth also because whatever municipal structures
of coercion lack any kind of authority.192 Formal lawlessness suggests
that there is no structure of coercive decision-making that is in line
with community expectations of how government is permitted to
act.193 Whatever decision-making still exists within the confines of
the sovereign relies increasingly, if not solely on naked power rather
than legal authority.194 In Professor Reisman’s terms, we are dealing
with ineffective constitutive structures.195 But because it is the regime
in place that makes the constitutive structures ineffective, returning
186. See Hannah Woolaver, State Failure, Sovereign Equality and Non-Intervention:
Assessing Claimed Rights to Intervene in Failed States, 32 WIS. INT’L L.J. 595, 602 (2014)
(defining state failure as the “absence or near-total ineffectiveness of central government”).
187. See id.
188. See supra Section I.B.
189. See Woolaver, supra note 186, at 602.
190. See id.
191. W. Michael Reisman, Myth System and Operational Code, 3 YALE STUD. WORLD
PUB. ORD. 229, 230 (1977) (“Hence we encounter two ‘relevant’ normative systems: one
which is supposed to apply and which continues to enjoy lip service among elites and one
which is actually applied. Neither should be confused with actual behavior, which may be
discrepant from both.”).
192. See LASSWELL & MCDOUGAL, supra note 43, at 16, 26.
193. See id.
194. See id. at 26.
195. See REISMAN, supra note 14, at 118-20.
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more effective control to the regime does little to increase the
lawfulness of governance.196
ISIL’s rule in Syria presents a dual pragmatic and formal
lawlessness problem. It is not sufficient to turn over ISIL-held
territory to forces loyal to Assad to restore lawful order.197 These
forces certainly nominally act on behalf of a sovereign that is
formally in charge of the territory in question.198 But simply ousting
ISIL and leaving the territory in the hands of the Syrian army would
do little to eliminate the underlying problem of rule by arbitrary
force.199
The Syrian experience is coming dangerously close to that of a
failed state.200 The central government is certainly ineffective with
196. See id.
197. See Press Release, U.S. State Dep’t, The Syrian Crisis: U.S. Assistance and Support
for the Transition (Mar. 17, 2014), http://www.state.gov/r/pa/prs/ps/2014/03/223955.htm
(noting that “[e]fforts to find a diplomatic solution to the Syria crisis are based on the Final
Communiqué of the 30 June 2012 Action Group meeting in Geneva. The process set forth by
the Communiqué is supported by the United States and the broad partnership of nations known
as the "London 11" that are pressing for a negotiated political solution to the Syria conflict.
The United States has been working vigorously to advance Syria’s transition through the
"Geneva II" international conference based on the Communique: the establishment of a
transitional governing body formed by mutual consent, exercising full executive powers over
all government institutions. The transitional governing body will also be charged with
reviewing the constitutional order and legal system and preparing for and conducting free and
fair elections. Yet through two rounds of U.N.-sponsored negotiations in Geneva, the Asad
regime’s refusal to engage in negotiations has stalled progress.”).
198. See CIA, WORLD FACTBOOK: SYRIA, https://www.cia.gov/library/publications/
the-world-factbook/geos/sy.html (listing Assad as chief of state of Syria).
199. See Action Group for Syria, Final Communiqué (June 30, 2012), http://www.
un.org/News/dh/infocus/Syria/FinalCommuniqueActionGroupforSyria.pdf
(requiring
“immediate, credible and visible actions by the Government of Syria to implement the other
items of the six-point plan including: o Intensification of the pace and scale of release of
arbitrarily detained persons, including especially vulnerable categories of persons, and persons
involved in peaceful political activities; provision without delay through appropriate channels
of a list of all places in which such persons are being detained; the immediate organization of
access to such locations; and the provision through appropriate channels of prompt responses
to all written requests for information, access or release regarding such persons; Ensuring
freedom of movement throughout the country for journalists and a non-discriminatory visa
policy for them; Respecting freedom of association and the right to demonstrate peacefully as
legally guaranteed.”) Russian claims to the contrary are addressed further below. As a matter
of analysis, the Russian claims of supporting the Syrian regime do nothing to address the
authority vacuum currently experienced in Syria. It is thus not an effective prescription to
address the ISIL problem (if it was ever actually intended as such in the first place.).
200. See Joel Slawotsky, Partnering with Despots and Failed Regimes: Rogue Banking
as a Primary Violation of International Law, 16 SAN DIEGO INT’L L.J. 73, 100 (2014)
(“Another example of a failed state is Syria where the current leader, President Assad, has
engaged in a civil war with Syrian citizens with an estimated death count in the thousands.”);
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regard to large areas of territory that are currently embroiled by civil
war.201 This civil war at least so far has not led to a decisive victory of
either Assad’s forces or the rebels.202 Simply removing ISIL from the
equation is likely going to do little to change this dynamic. It would
simply put Raqqa and other Syrian territory held by ISIL back in play
for conquest and re-conquest by either side in the civil war.203
Critically, in this context one can see how the reaction to the loss
of control or power by the Syrian regime effectively eroded, and
continues to erode, the regime’s authority.204 The response of the
Syrian government to loss of control—facially pragmatic
lawlessness—was to ratchet up a coercive means to re-establish
control.205 This increase in coercive force revealed that the
government was far less effective in controlling its territory than
Joshua A. Frey, The New Communication: Leveraging Community Relations to Transition
from Wars Amongst the People to Peace Amongst the People, 38 FLETCHER F. WORLD AFF.
213, 218 (2014) (listing Syria as a failed state alongside Somalia and Libya); Ex UN Envoy
Predicts Syria Will Be ‘Failed State’, BBC (June 8, 2014), http://www.bbc.com/news/worldmiddle-east-27754732 (reporting a statement by Lakhdar Brahimi that Syria could become a
failed state); Karl W. Eikenberry, A Grand Strategy for Failed States, DEFINING IDEAS (Feb.
17, 2015), http://www.hoover.org/research/grand-strategy-failed-states (including Syria in the
list of failed states for which the United States needs a containment strategy).
201. Compare Woolaver, supra note 186, at 602 (defining ineffectiveness as key trait of
failed state), with Raja Adbulrahim, Syria Steps up Airstrikes in Rebel-Held Areas of Aleppo,
WALL ST. J., Apr. 16, 2015, http://www.wsj.com/articles/syria-steps-up-airstrikes-on-rebelheld-aleppo-1429204918 (discussing Syrian government use of shrapnel bombs to regain
Aleppo), and Anne Barnard & Hwaida Saad, Islamists Seize Control of Syrian City in
Northwest, N.Y. TIMES, Apr. 25, 2015, http://www.nytimes.com/2015/04/26/world/middleeast
/islamist-militants-capture-syrian-town.html (“President Bashar al-Assad has hung on during a
four-year insurgency, but his forces have been unable to retake control of large parts of Syria,
and in recent weeks insurgents opposed both to his rule and to the Islamic State, also known as
ISIS or ISIL, have made advances in the north and south.”).
202. See supra notes 156-58.
203. See Yaroslav Trofimov, In Islamic State Stronghold of Raqqa, Foreign Fighters
Dominate, WALL ST. J., Feb. 4, 2015, http://www.wsj.com/articles/in-islamic-state-strongholdof-raqqa-foreign-fighters-dominate-1423087426 (noting the frontline between ISIL and the
Free Syrian Army around Aleppo).
204. See supra Section I.A.2.
205. See Ben Hubbard, An Ever-Bleaker Syria, From All Vantage Points, N.Y. TIMES,
Mar. 14, 2015, http://www.nytimes.com/2015/03/15/world/an-ever-bleaker-syria-from-allvantage-points.html; Syrian Center for Policy Research, Syria Alienation and Violence: Impact
of Syria Crisis Report 2014, at 10 (Mar. 2015), http://www.unrwa.org/sites/default/files/alie
nation_and_violence_impact_of_the_syria_crisis_in_2014_eng.pdf (“As the institutions of
violence have expanded and been reinforced they have spread hatred, extremism and
polarization. These institutions primarily serve the objectives of the powers of subjugation
through oppression, fanaticism and fundamentalism, regardless of the will of people. This
created a fissure and great divide between Syrians and different dominating institutions that
has significantly aggravated estrangement and alienation among the majority of people.”).
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might have been presumed—and thus undermined the government’s
authority by undermining the community perception that the state
could swiftly re-establish itself.206 This increase in coercive force
further made the application of power by the Syrian regime
increasingly arbitrary and barbaric thus further removing the Syrian
regime’s actions from the authoritative expectations of the Syrian
population.207 The reaction to a loss of control through increasingly
barbaric uses of force was precisely what undermined the authority of
the Syrian regime and confirmed that its rule introduces not just a
pragmatic lawlessness problem, but a formal one.
C. The Functional Dimension
The problem gets more complex still. The issues presented by
the Syrian crisis transcend pragmatic and formal lawlessness—the
presence of a lawless non-state actor with no authoritative
government to step in its place.208 ISIL’s presence in Syria showcases
a third, functional, form of lawlessness—one in which pragmatic and
formal lawlessness are symptoms of a deeper functional problem:
there is no social process in place out of which lawful governance
could re-emerge.
Much like there is a readily identifiable distinction between the
pragmatic and formal perspectives of lawlessness, there is a readily
available distinction of the functional perspective, as well.209 Both the
pragmatic and the formal perspectives are focused primarily upon law
as an autonomous subject of inquiry.210 Lawlessness is defined by its
relationship to law and legal process.211 Both the pragmatic and the
formal perspectives thus focus upon certain qualities of the absence of
law and legal process that can be ascertained by lawyers and legal
scholars from within their respective discourses.212
But lawlessness is not only—and not even principally—a legal
phenomenon.213 It is a social problem.214 Meaningful engagement of
206. See Syria Crisis Report 2014, supra note 205, at 10.
207. See id.
208. See supra Section I.B.
209. See supra Section I.B.
210. See supra Section I.B.
211. See supra Section I.B.
212. Id.
213. See, e.g., Robin West, Reconstructing the Rule of Law, 90 GEO. L.J. 215, 218
(2001) (“The lawyer professionally committed to the moral value of the Rule of Law, so
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lawlessness must look not only to the pragmatic and formal aspects of
lawlessness as they arise within the legal discourse itself.215 Rather,
they must also situate lawlessness in the larger context of social
processes in which such lawlessness exists.216 So far, lawlessness has
been addressed as if there were a clean dividing line between legal
discourse and social discourse.217 Lawlessness provides an intuitive
case that such lines simply cannot be drawn: when law encounters its
own putative absence, it is asked to lift itself up as if by its own
bootstraps to provide a legal response to the problem. “Law” can
function in this manner if it is a frame of social processes into which
legal process is interwoven—as opposed to being an entirely
autonomous social (or metaphysical) process of its own.218
From this broader functional perspective, lawlessness emerges
when the broader social processes to which law contributes are
themselves eviscerated. Law arises because there are stable
expectations, which community members place in social decision.219
These expectations are anchored in the social fabric that otherwise
binds community members to their respective communities and, thus,
to each other.220 When this fabric frays, or worse, disappears, so does
law or legal process;221 the predicate for the stability of
expectations—the network of social interaction that gives meaning to
the relationship between persons, objects, obligations, and status—is
itself no longer present.222 Absent this predicate, law becomes a
meaningless assertion.
understood, has a critical (in both senses) role to play in decrying the peculiar form of social
injustice that is found in lawlessness.”).
214. Id.
215. See Section I.B.1-2.
216. LASSWELL & MCDOUGAL, supra note 43, 130-01 (discussing the relationship
between law and other social processes in realist jurisprudence).
217. See Section I.B.1-2.
218. See Pierre Legrand, Siting Foreign Law: How Derrida Can Help, 21 DUKE J.
COMP. & INT’L L. 595, 609 (2011) (eschewing the crude binary distinction of law and nonlaw).
219. LASSWELL & MCDOUGAL, supra note 43, at 63-4.
220. Id.
221. See SCHMITT, supra note 24, at 20; Pocock, supra note 11, at 70, 75.
222. See A Jurisprudence from the Perspective of the “Political Superior,” supra note
55, at 617 (“A distinction can be drawn between decisions which are taken entirely on the
basis of naked power without regard to the expectations of rightness of the people influenced
by them and decisions which conform to those expectations, but lack all effectiveness. From
the perspective of a jurisprudence of social choice, the word “law” is reserved for those
processes of decision which are both consistent with the expectations of rightness held by
members of a community (authoritative decisions) and which are effective (controlling
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It is this form of lawlessness that hides in the background of
Professor Reisman’s treatment of lawlessness—but, as if an evil
jinn—is never permitted to escape into the open.223 Current events in
the Middle East have certainly opened the door for it to escape. What
functional lawlessness describes is a fifth constitutive configure in
addition to constitutive processes (1) without hierarchical institutions,
(2) with ineffective hierarchical institutions, (3) with partly effective
hierarchical institutions, and (4) with highly effective hierarchical
institutions.224 It is a configuration that eviscerates constitutive
configurations themselves by uprooting individuals from a context in
which they could form authoritative expectations—and as such have
the capacity to hold constitutive commitments of whatever kind.225
Syria provides a sad example for such a functional lawlessness
problem. The carnage and displacement of Syrian citizens brought
about by the civil war has not only had a devastating cost in terms of
human life, it has had a deep social cost.226 More than eleven million
people of Syria’s 22 million population are reportedly displaced by
the conflict.227 This displacement has severe repercussions for the
expectations Syrian nationals can have in leading their day-to-day
lives; in the short-term, their expectations of how to formulate
strategies for survival is frequently as dim as it is a struggle for bare
personal survival (depending in part on where in Syria they reside or
decisions). These are, one might add, likely to be the most efficient decisions, for they draw,
for their support, both on effective power and on the expectations of authority of those to
whom they are directed. While the particular mix of authority and control may vary widely, a
conception of law as authoritative and controlling decision protects the person making choices
from exercises in irrelevance, whether because of absence of authority or absence of control.”).
223. It is the catastrophe presaged in the alternative future in which law is not vigorously
defended. See REISMAN, supra note 14, at 21, 477.
224. Id. at 117.
225. One might call functional lawlessness the paradigmatic corrosive disadvantage. See
NUSSBAUM, supra note 44, at 44 (“corrosive disadvantage is the flip side of fertile capability;
it is a deprivation that has particularly large effects in other areas of life.”).
226. See Somini Sengupta, U.N. Calls on Western Nations to Shelter Syrian Refugees,
N.Y. TIMES, Apr. 17, 2015, http://www.nytimes.com/2015/04/18/world/middleeast/un-callson-western-nations-to-shelter-syrian-refugees.html (noting that “the war in Syria is creating
the worst global refugee crisis in decades . . .”).
227. Local Ceasefires Could Be Path to Peace in Syria, OXFAM (Mar. 13, 2015),
http://www.oxfamamerica.org/explore/stories/local-ceasefires-could-be-a-path-to-peace-insyria/ (“Nearly four years of bloody civil war have torn the country apart, driving more than 11
million people from their homes and leaving about half of Syria’s 22 million citizens in need
of humanitarian assistance.”).
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by which route they have been able to flee).228 Their long-term
expectations appear similarly intractable given the lack of meaningful
policymaking even with regard to the refugee crisis by Western
powers.229
This social cost prevents a strategy of local resistance of sorts to
lawlessness. Such a resistance would look to community leaders to
continue the task of bringing some form of lawfulness to the day-today lives of the local community.230 Thus, local elders, judges, and
lawyers could functionally support an organized and authoritative
form of prescription even when there are no governmental processes
to fall back on.231 Law would be kept alive in the interactions between
228. Rick Lyman, Winter Poses New Danger for Migrants, N.Y. TIMES, Oct. 18, 2015,
http://www.nytimes.com/2015/10/19/world/europe/refugees-face-winter-as-new-danger-foreurope-migration.html (reporting that “[b]ut with fall winds carrying the first hints of frost,
and the situation along the borders unresolved, the migrants, aid workers and government
officials are anxiously looking ahead. If the numbers increase drastically or, worse, if there are
more border closings, there would be an almost immediate backup that would quickly
repopulate border camps within a week — some of them open-air, others consisting mostly of
unheated tents”); Maher Samaan & Anne Barnard, For Those Who Remain in Syria, Daily Life
Is a Nightmare, N.Y. TIMES, Sept. 15, 2015, http://www.nytimes.com/2015/09/16/world/
middleeast/for-those-who-remain-in-syria-daily-life-is-a-nightmare.html (detailing the internal
civilian casualties by region in Syria); Nick Cumming-Bruce, Number of Syrian Refugees
Climbs to More than 4 Million, N.Y. Times, July 9, 2015, http://www.nytimes.com/2015/07/
09/world/middleeast/number-of-syrian-refugees-climbs-to-more-than-4-million.html
(reporting the number of internally displaced at 7 million and reporting further that “‘This is
the biggest refugee population from a single conflict in a generation,’ Antonio Guterres, the
United Nations high commissioner for refugees, said in a statement. Mr. Guterres, once again,
warned that international aid was not keeping pace with the scale of the crisis, and that many
refugees were ‘sinking deeper into poverty.’”).
229. See Tim Arango, Merkel Links Turkey’s E.U. Hopes to Stemming Flows of
Refugees, N.Y. TIMES, Oct. 18, 2015, http://www.nytimes.com/2015/10/19/world/merkellinks-turkeys-eu-hopes-to-stemming-flow-of-refugees.html?ref=topics (detailing the potential
role of Turkey to stem the migrant crisis); Andrew Higgins, Migrant Crisis Leads to Calls for
Tighter Borders in Europe, N.Y. TIMES, Oct. 15, 2015, http://www.nytimes.com/2015/10/16/
world/europe/migrant-crisis-europe.html (“The meeting, which stretched late into the night,
signaled a shift from the message of open-armed welcome conveyed over the summer by
Chancellor Angela Merkel of Germany toward what critics describe as a ‘fortress Europe’
approach.”).
230. See Sophie de Schaepdrijver, Occupation, Propaganda and the Idea of Belgium, in
EUROPEAN CULTURE IN THE GREAT WAR: THE ARTS, ENTERTAINMENT AND PROPAGANDA
1914-1918 at 267, 270 (Aviel Roshwald & Richard Stites eds., 2002) (discussing such Belgian
efforts when the Belgian central government failed during World War I).
231. See id. (“The only ongoing ‘Belgian’ authority under occupation was local. As had
obtained in earlier centuries, it now devolved upon the country’s 2,633 communes to defend
their citizens against the encroachments of invading powers. Four years of occupation would
See an unending series of clashes between the German military and local Belgian powers. In a
steady strem, hundreds of recalcitrant burgomasters, aldermen, and councilmen joined what
Brand Whitlock, the US minister to Belgium, called ‘that patriotic colony in German prisions.’
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those subjected to lawlessness.232 By empowering the local
community leaders “through forms of interim or contingent
international governance,” it would thus be possible to re-establish
some form of legal order once the external threat from ISIL and the
Syrian government has been removed.233
The Syrian problem is that no such strategy will prove effective.
The carnage and displacement in Syria has been too severe and too
prolonged to permit recourse to such a strategy.234 The very local
leaders whom one could count on to maintain the vestiges of lawful
government are precisely the persons targeted for killing by any
means necessary.235 There are few local structures left intact in order
to maintain any kind of authoritative governance on the ground.236
The areas held by ISIL in Syria are not only pragmatically and
formally lawless.237 They are not currently capable of maintaining any
indigenous processes of proto-legal decision in day-to-day life.238
They are lawless from a functional point of view, as well as from a
A constant level of low-key resistance was kept up for the duration of the war, even as
occupation life settled into a makeshift routine.”).
232. See id.
233. See REISMAN, supra note 14, at 254-55.
234. See Somini Sengupta, U.N. Calls on Western Nations to Shelter Syrian Refugees,
N.Y. TIMES, Apr. 17, 2015, http://www.nytimes.com/2015/04/18/world/middleeast/un-callson-western-nations-to-shelter-syrian-refugees.html (noting that “the war in Syria is creating
the worst global refugee crisis in decades …”); see also Oliver Holmes, More Than 2,000
Killed by U.S.-Led Airstrikes in Syria, Monitor Claims, HAARETZ (Apr. 23, 2015),
http://www.haaretz.com/news/middle-east/1.653267 (reporting a recent 22,000 death toll in the
Syrian conflict); see Fatih Karimi & Salma Abdelaziz, Syria Civil War Deaths to Top 160,000,
Opposition Group Says, CNN (May 20, 2014), http://www.cnn.com/2014/05/19/world/meast/
syria-civil-war/ (reporting a total death toll of more than 160,000 for the Syrian conflict
through May 2014).
235. See Kim Sengupta, How Assad Chose His Killing Fields, INDEPENDENT (Sept. 10,
2013),
http://www.independent.co.uk/news/world/middle-east/how-assad-chose-his-killingfields-the-greatest-threat-to-the-syrian-leader-lies-on-his-doorstep--in-the-district-of-ghoutawhich-was-targeted-by-his-chemical-weapons-8807534.html (noting chemical and other
attacks on civil leaders hostile to Assad); Neil MacFarquhar & Hala Droubi, In Syria’s Civil
War, Doctors Find Themselves in Cross Hairs, N.Y. TIMES (Mar. 23, 2013), http://
www.nytimes.com/2013/03/24/world/middleeast/on-both-sides-in-syrian-war-doctors-areoften-the-target.html (noting targeted killings of medical professionals Seeking to come to the
aid of the Syrian population).
236. See citations in supra notes 225-26.
237. See supra Sections I.A.1-2.
238. See LASSWELL & MCDOUGAL, supra note 43, at 66 (discussing decision processes
premised upon authority and control in primitive societies).
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pragmatic and formal point of view.239 And in this state of functional
lawlessness, legal decision is and must be meaningless.
D. The Progression of Lawlessness
Conceiving of lawlessness as a progression of pragmatic, formal,
and functional lawlessness showcases how lawlessness evolves from
a momentary loss of control to a potential for the total loss of social
fabric and thus complete lawlessness. It has also shown that the
typically easiest prescription to a momentary loss of control—get
control back by coercive means—is precisely one of the accelerants
for the progression of lawlessness.240 The explanation of lawlessness
by reference to its effects on both the axioms of control and authority
can explain why and how this is so.241 By using both axioms of
control and authority, it has further showcased that an overplaying of
control decisions can have the effect of completely eroding the
capacity for authoritative decision making in society.242 It has mapped
both the decisions that dissolve legality or lawfulness (first formal
legality or lawfulness than functional legality or lawfulness) and the
social processes pursuant to which these decisions can have that
effect.243
IV. LAWLESSNESS AND INTERNATIONAL LAW
International law appears at first blush to fare better in its
engagement of lawlessness. Thus, it is certainly safe to say that both
the acts of ISIL on the one hand and the Syrian government on the
other hand run afoul of international legal norms.244 From an
239. See supra Sections III.B-C.
240. See supra Sections III.B-C.
241. See supra Section I.A.2.
242. See supra Section III.C.
243. LASSWELL & MCDOUGAL, supra note 43, at 25 (discussing the importance of such
mapmaking).
244. See Report of the Office of the United Nations High Commissioner for Human
Rights on the Human Rights Situation in Iraq in the Light of Abuses Committed by the Socalled Islamic State in Iraq and the Levant and Associated Groups, U.N. DOC. A/HRC/28/18,
at 15 (Mar. 19, 2015) [hereinafter Report of the Office of the United Nations High
Commissioner for Human Rights] (making the case for international legal criminal
responsibility for ISIL members for the commission of genocide, crimes against humanity, and
war crimes); “Flagrant” Violations of International Law Continue in Syria, Top UN Relief
Official Warns, U.N. NEWS CENTER (July 30, 2014), http://www.un.org/apps/news/story.asp?
NewsID=48375#.VT1aNJOKhVc (detailing violations of international law by the Syrian
regime in its engagements in the Syrian civil war).
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international legal perspective municipal lawlessness is simply a
violation of an existing international legal order and can thus be made
sense of as such.245
But this conclusion is too facile. The assertion that the acts of
ISIL and the Syrian government violate international law do very
little to help the current victims of their respective atrocities.246 In the
case of ISIL at least, it is safe to say that the protestations of
unlawfulness not only failed to stem violence but apparently fueled
it.247 In the context of humanitarian crises like Syria, statements of
international legality on their own are thus relatively meaningless
unless they are backed by some cognizable sanction that would tend
to have a real-world ability (as opposed to a moral exhortation) to
change facts on the ground.248 Addressing lawlessness from the perch
of an armchair academic as fully resolved because of the presence of
some metaphysical order conjured in the laboratories of the law
review article or op-ed piece runs the risk of mistaking law for
theology and the plight of millions for a hypothetical in a final
examination.249
245. See supra Sections III.B-C.
246. See Human Rights Watch, Human Rights Report Syria (2015), http://www.hrw.org/
world-report/2015/country-chapters/syria (“The government also persisted in dropping large
numbers of high explosive barrel bombs on civilians in defiance of UN Security Council
resolution 2139 passed on February 22. These unguided high explosive bombs are cheaply
made, locally produced, and typically constructed from large oil drums, gas cylinders, and
water tanks, filled with high explosives and scrap metal to enhance fragmentation, and then
dropped from helicopters. Between February and July, there were over 650 new major impact
strikes in Aleppo neighborhoods held by armed opposition groups. Most of the strikes had
damage consistent with barrel bomb detonations. One local group estimated that aerial attacks
had killed 3,557 civilians in Aleppo governorate in 2014.”).
247. Musa Al-Gharbi, ISIL’s Barbaric Acts Are Highly Effective Propaganda, AL
JAZEERA (Feb. 23, 2015), http://america.aljazeera.com/opinions/2015/2/why-did-isil-burn-thejordanian-pilot.html (“It is naive to assume that ISIL did not foresee Jordan’s military response
or the outrage among Muslims at the burning of a fellow Muslim or the sensationalism of
Western media. These were rather obvious consequences. Jordan’s deepened engagement, the
heightened polarization of the Muslim community and the increasing U.S. support for
intervention serves ISIL’s strategic interests. In fact, it burned Kassasbeh to death to provoke
such responses.”).
248. The Prescribing Function in World Constitutive Process: How International Law
Is Made, supra note 93, at 251(“In certain marginal situations, authority may constitute the
sole base value for a particular process of prescription. This may be treated as prescription
only if the requisite element of control is subsequently brought into play, thus creating in the
audience the expectation that certain behavior not only should be followed but will indeed be
required.”).
249. See LASSWELL & MCDOUGAL, supra note 43, at 126 (noting that even attempts to
rid pure legal inquiry from metaphysics backfired because Kelsen “in his effort to cleanse
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To ascertain the ability of international law to resolve the
lawlessness problem on its own terms it is thus necessary to get one’s
hands dirty.250 It is a question of what sanction international law
actually permits to rid the world of lawless actors and assist those
previously ruled by the thugs in question to return to a form of
relatively lawful governance.251 When we consider international law
from this functional perspective, the Syrian Civil War provides a stark
example that international law provides little more comfort in dealing
with ISIL’s lawlessness than the formal myths of municipal law.252
Worse still, upon closer analysis, international legal argument validly
relies upon formal perspectives of sovereign rule that are contradicted
outright if viewed through the municipal legal lens.253 The
lawlessness afflicting social processes on the ground thus must
transfer to the international legal plane.
This Part will map this transnational transference of lawlessness
by comparing the response to ISIL in Iraq and in Syria. It will lay out
the robust response in Iraq first.254 It will then look to the far less
robust response in Syria.255 It will then dissect that the comparison
reveals how an increasing loss of authority in-country leads to an
increased transnational transference of lawlessness from the
municipal to the international plane.256 This transnational transference
has the effect of corroding the authority of international decision
making processes in a proportionate amount to the loss of authority
on the domestic scale.257
jurisprudence of metaphysical elements and value judgments, has cleansed it of any helpful
reference to what he describes as ‘natural reality.’”).
250. See REISMAN, supra note 14, at 100 (discussing the importance of dirty work in the
context of international law).
251. It looks for the operational code, the actually practiced form of authoritative
decision making by relevant decision makers with their proverbial “hand on the button” as
opposed to the idealized version of the normative world order distributed for public
consumption. See Myth Systems and Operational Code, supra note 191, at 231 (discussing the
distinction between myth system and operational code); Michael N. Schmitt, Responding to
Transnational Terrorism under the Jus ad Bellum: A Normative Framework, 56 NAVAL L.
REV. 1, passim (2008) (discussing the change of the operational code of international law in
the fight against terrorism following the 9/11 attacks based upon the actions of the United
States and its allies).
252. See supra section III.B.
253. See supra Section IV.B.
254. See supra Section IV.A.
255. See supra Section IV.B.
256. See supra Section IV.C.
257. Id.
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A. International Response to ISIL in Iraq
The problem international law faces in dealing with lawlessness
is already apparent in the context of the current international efforts to
expel ISIL from Iraq. At first blush, it appears that the international
legal order can anchor the legality of intervention against ISIL in
Iraq’s consent to and request for military aid.258 But even this
apparent consensus is problematic given the contextual factors
currently in play in Iraq.259
1. The Consent-Based Case
As discussed in Part II, ISIL is active in both Iraq and Syria.260
ISIL held and continues to hold territory in Iraq close to the Syrian
border and into the Kurdish regions of northern Iraq.261 At one point,
ISIL even militarily threatened Baghdad.262
ISIL’s conduct in Iraq is well-documented.263 It does not differ
significantly from ISIL’s conduct in Syria.264 Thus, ISIL in the Iraqi
context similarly is accused of substantive violations of basic
international norms—most notably, ISIL is in most likelihood
committing genocide within Iraq.265 ISIL also stands accused of the
same arbitrary conduct discussed in the Syrian context above.266 ISIL
258. See supra Section IV.A.1.
259. See supra Section IV.A.2.
260. See supra Section II.
261. Battle for Iraq and Syria in Maps, BBC (Apr. 24, 2015),
http://www.bbc.com/news/world-middle-east-27838034.
262. Alastair Beach, Iraq Asks for US Ground Troops as ISIL Threaten Baghdad,
TELEGRAPH (Oct. 11, 2014), http://www.telegraph.co.uk/news/worldnews/islamic-state/11156
264/Iraq-asks-for-US-ground-troops-as-Isil-threaten-Baghdad.html (reporting ISIL’s military
threat).
263. Report of the Office of the United Nations High Commissioner for Human Rights,
supra note 244, at 15 (making the case for international legal criminal responsibility for ISIL
members for the commission of genocide, crimes against humanity, and war crimes); Nick
Cumming-Bruce, United Nations Investigators Accuse ISIS of Genocide over Attacks on
Yazidis, N.Y. TIMES, Mar. 19, 2015, http://www.nytimes.com/2015/03/20/world/middleeast/
isis-genocide-yazidis-iraq-un-panel.html (making the same case); Amnesty Int’l Rep. 2014/15,
The State of the World’s Human Rights 3 (2015), https://www.amnesty.org/en/documents/
pol10/0001/2015/en/ (making the same case).
264. Amnesty Int’l Rep. 2014/15, The State of the World’s Human Rights 3 (2015),
https://www.amnesty.org/en/documents/pol10/0001/2015/en/ (dealing with ISIL’s atrocities in
both Iraq and Syria in one section and drawing no distinctions between them).
265. See supra Section IV.B.
266. Section II.A.
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in both contexts, Syria and Iraq, thus presents the same pragmatic
lawlessness problem.267
Unlike in the Syrian context, Iraq continues to have a
functioning government.268 This government is reasonably
representative of the various ethnic and religious groups making up
Iraq.269 Although the government is still under some scrutiny in its
ability to provide a stable and reasonable framework for the
governance of Iraq,270 the international community by and large
recognizes it as a far more effective governance structure than the
current Syrian central government.271 Judging from the point of view
of municipal formal rule of law, Iraq has far stronger credentials to
offer than Syria.272
Iraq has waived its sovereignty in asking for international
assistance in defeating ISIL on its territory.273 Premised upon this
267. Id.
268. U.S. State Department, U.S. Relations with Iraq, Fact Sheet (Sept. 7, 2012),
http://www.state.gov/r/pa/ei/bgn/6804.htm (“Iraq has functioning government institutions
including an active legislature, is playing an increasingly constructive role in the region, and
has a bright economic future as oil revenues surpass pre-Saddam production levels with
continued rapid growth to come.”).
269. See Madeleine Snyder, Post-War Iraq: The Triangle of Ethnic Tensions, 35(4)
HARV. INT’L REV. (June 14, 2014), http://hir.harvard.edu/archives/5766 (“The new Iraqi
government shows signs of successful power sharing and limitation, as a Shia Prime Minister
and a Kurdish President must authorize executive decisions and have those decisions approved
by a Sunni speaker of parliament and the Iraq Council of Representatives. This federalist
model of government does little to smooth over the ethnic divides so prominent in the politics
of the country, but it allows for each ethnic group to preserve its autonomy, protect vital
interests, and provides the inclusive representation necessary to support the nascent Iraqi
government.”).
270. Id.; see also Amnesty International Report 2014/15, The State of the World’s
Human Rights 41 (2015), https://www.amnesty.org/en/documents/pol10/0001/2015/en/ (“In
Iraq, the government’s response to IS’s advance was to stiffen the security forces with progovernment Shi’a militias and let them loose on Sunni communities seen as anti-government
or sympathetic to IS, while mounting indiscriminate air attacks on Mosul and other centres
held by IS forces.”).
271. Tom Malinowski, Seizing the Post-ISIL Opportunity for Democracy and Inclusion,
U.S. STATE DEPT. (Feb. 11, 2015), http://www.state.gov/j/drl/rls/rm/2015/237814.htm
(discussing planning for a post-civil war Iraq).
272. See Section II.B.
273. See Martin Chulov & Spencer Ackerman, Iraq Requests US Air Strikes as ISIS
Insurgents Tighten Grip on Oil Refinery, GUARDIAN (June 18, 2014), http://www.theguardian.
com/world/2014/jun/18/iraq-request-us-air-strikes-isis-baiji-oil (“Iraq has asked the US to
stage air attacks on Sunni insurgents as the Islamist fighters edged closer to full control of
Iraq's largest oil refinery and continued to hold out against troops trying to retake the city of
Tal Afar”); Julian Borger & Patrick Wintour, Obama Vows to Destroy ISIS’ “Brand of Evil”
As Iraq Requests Help from Britain, GUARDIAN (Sept. 24, 2014), http://www.theguardian.
com/world/2014/sep/24/obama-isis-brand-of-evil-uk-air-strikes-iraq (“Cameron met the Iraqi
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request, a broad international coalition has in fact agreed to come to
the aid of the Iraqi government in addressing the ISIL threat.274 The
declarations of many of the relevant governments participating in the
coalition in fact refer expressly to the consent in question.275 State
consent arguably would vitiate any claim that international action in
the territorial borders of Iraq would constitute an internationally
wrongful act.276 There is little diplomatic protest over international
assistance to Iraq in fighting ISIL, thus suggesting that, in this context
at least, international law would have a means available to combat a
pragmatic form of lawlessness when the territorial sovereign is unable
to do so on its own.277
prime minister, Haider al-Abadi, in New York to receive a formal request for military action,
clearing a vital legal hurdle to UK involvement.”).
274. For a formal list of coalition partners, see Special Presidential Envoy for the Global
Coalition to Counter ISIL, Index, http://www.state.gov/s/seci/index.htm (last visited Nov. 19,
2015) (stating that “over 60 coalition partners have committed themselves to the goals of
eliminating the threat posed by ISIL and have already contributed in various capacities to the
effort to combat ISIL in Iraq, the region and beyond.”). Although not technically part of the
coalition, Iran has similarly worked as a partner in the fight against ISIL. See also Mohamad
Bazzi, Iran Will Do What it Takes to Fight ISIS, CNN (Jan. 3, 2015), http://www.cnn.com/
2015/01/03/opinion/bazzi-iran-iraq/ (“Iranian officials have slowly acknowledged their covert
operations inside Iraq. ‘Iran has helped Iraq in an advisory role and has quickly organized Iraqi
militias,’ Gen. Amir Ali Hajizadeh, commander of the Revolutionary Guards’ Aerospace
Forces, told the Fars News Agency in September. ‘Were it not for Iran, the Islamic State
would have taken over Iraqi Kurdistan.’”).
275. See, e.g., Background Briefing, WHITE HOUSE (Aug. 8, 2014), https://www.
whitehouse.gov/the-press-office/2014/08/08/background-briefing-senior-administrationofficials-iraq (“with respect to international law, we believe that any actions we would take, to
include airstrikes, would be consistent with international law, as we have a request from the
Government of Iraq. So we’ve essentially been asked and invited to take these actions by the
Government of Iraq, and that provides the international legal basis”). For a summary and
discussion of the statements of French, UK, Australian, and Belgian officials, see Raphael Van
Steenberghe, The Alleged Prohibition on Intervening in Civil Wars Is Still Alive after
Airstrikes Against Islamic State in Iraq: A Response to Dapo Akande and Zachary Vermeer,
EJILTALK! (Feb. 12, 2015), http://www.ejiltalk.org/the-alleged-prohibition-on-intervening-incivil-wars-is-still-alive-after-the-airstrikes-against-islamic-state-in-iraq-a-response-to-dapoakande-and-zachary-vermeer/#more-13063.
276. ILC Draft Articles on State Responsibility for Internationally Wrongful Acts,
International Law Commission, Report on the Work of its Fifty-Second Session, UN GAOR,
55th Sess., Supp. No. 10, art. 20, U.N. Doc. A/55/10 (2000) (“Valid consent by a State to the
commission of a given act by another State precludes the wrongfulness of that act in relation to
the former State to the extent that the act remains within the limits of that consent.”).
277. For a discussion of a similar issues in the context of US strikes in Pakistan with
Pakistan’s consent, see Ashley S. Deeks, Consent to the Use of Force and International Law
Supremacy, 54 HARV. INT’L L.J. 1, 33-42 (2013) (arguing that “international law does not
currently preclude a state from using consent as a basis for employing force in another state’s
territory” but that “it may rely on consent use only that ‘quality of force’ that the host state
could use”).
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2. Problems with the Consent-Based Case
Formal questions could arise whether intervention in Iraq on the
side of the Iraqi government constitutes an impermissible assistance
in an internal war or civil conflict.278 As Professor Dapo Akande and
Zachary Vermeer develop, “many scholars, and indeed some States,
have suggested that there is a general prohibition on military
assistance to governments in a situation of civil war or internal
rebellion.”279 Civil war for purposes of the argument refers to “a noninternational armed conflict” that is “between the established
government of a State and one or more insurgent movements whose
aim is to overthrow the government or political economic or social
order of the State, or to achieve secession or self-government for any
part of the State” or “between two or more groups contending for
control of the State in the absence of an established government.”280
Professor Akande and Vermeer submit that the “conflict between
the Iraqi Government and Islamic State seems to fall within the scope
of the prohibition.”281 Principally, the conflict falls within the putative
prohibition because “[a]t the time the airstrikes commenced [ISIL]
exercised control over a significant portion of Iraqi territory, allowing
it . . . to carry out sustained and concerted military operations.”282
This cautionary position gains the more traction when placed in the
context of ISIL’s ability to hold majority Sunni ground in Iraq,
exercise governmental functions in those areas, and enjoys a
modicum of popular support from the Sunni-majority population—
and, arguably, more support than the multi-ethnic Iraqi central
government.283
Professor Akande and Vermeer’s argument has not gained
significant traction in the response to ISIL in Iraq on the ground. In
fact, current state practice in the fight against ISIL in Iraq may very
278. Dapo Akande & Zachary Vermeer, The Airstrikes Against Islamic State and the
Alleged Prohibition on Military Assistance to Governments in Civil Wars, EJILTALK! (Feb. 2,
2015),
http://www.ejiltalk.org/the-airstrikes-against-islamic-state-in-iraq-and-the-allegedprohibition-on-military-assistance-to-governments-in-civil-wars/.
279. Id.
280. Id. (relying upon the work of the Institut de Droit International, Louise DoswaldBeck, Christine Gray, and Olivier Corten).
281. Id.
282. Id.
283. ISIL Wins Support From Iraq’s Sunni Tribes, AL JAZEERA (June 4, 2015),
http://www.aljazeera.com/news/2015/06/sunni-sheiks-pledge-allegiance-isil-iraq-anbar150604074642668.html.
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well suggest that the rule is, as a matter of form, inapposite to the
conflict. The intuition underlying Professor Akande and Vermeer’s
thought nevertheless is functionally insightful: it points out the first
elements of a transnational transference of lawlessness; there is a
weakening of the authority of an international coercive response to
lawlessness arising directly from the weakening of the authority of the
domestic government the coercive action is supposed to assist.284 As
comedian Jon Stewart acerbically put it, the Sunni population of Iraq
prefers a brutal, repressive, medieval Taliban-like state to the
government the US left it with.285 This preference begins to have
international legal repercussions.286
B. Intervention in Syria
The problem becomes more pronounced in the context of armed
action against ISIL in Syria. At an early point in the campaign, many
of the coalition members who participate in strikes against ISIL in
Iraq did not participate in the US campaign against ISIL in Syria.287
The reason for the distinction is, on its face, straightforward: action
against ISIL in Iraq is supported by the request and consent of the
Iraqi government.288 Action against ISIL in Syria by Western forces is
not supported by a similar request and consent of the Syrian
government.289 Though the initial resistance of US coalition members
has softened in light of perceived foreign policy needs since the
284. See Section IV.C.1.
285. The Daily Show (July 27, 2015), http://thedailyshow.cc.com/full-episodes/
mtwqgq/july-27--2015---david-mccullough, at minute 6:45-6:59.
286. See Section IV.C.1.
287. Tom Bowman, Despite Coalition Partners, U.S. Has Done Most Airstrikes Against
ISIS, NPR (Feb. 6, 2015), http://www.npr.org/2015/02/06/384345873/despite-coalitionpartners-u-s-has-done-most-airstrikes-against-isis (“The U.S. is doing more than 90 percent of
all the bombing runs in Syria.”); Stephen Castle & Steven Erlanger, 3 Nations Offer Limited
Support of Attack on ISIS, N.Y. TIMES, Sept. 26, 2014, http://www.nytimes.com/2014/09/27/
world/europe/british-parliament-vote-isis-airstrikes.html (“Britain, Belgium and Denmark
lined up Friday behind the United States in its fight against the Islamic State group, agreeing to
military operations in Iraq — but drawing a line for now against direct intervention in Syria.”).
288. See Section III.B.
289. Alastair Jamieson & Jim Miklaszewski, Syria Given Information About U.S.-Led
Airstrikes Against ISIS: Assad, NBC NEWS (Feb. 10, 2015), http://www.nbcnews.com/
storyline/isis-terror/syria-given-information-about-u-s-led-airstrikes-against-isis-n303381 (“In
a rare interview, he also ruled out joining the U.S.-led coalition against ISIS as long as
Washington was supporting rebels battling his regime, calling them ‘terrorists.’ ‘We don't have
the will and we don't want [to] for one simple reason: because we cannot be [in] alliance with
the country [that] supports the terrorism,’ Assad told the BBC's Jeremy Bowen.”).
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beginning of the campaign, their original legal qualms remain largely
unresolved.290
Since the campaign against ISIL in Syria by Western forces
without the consent of the Syrian government, the Syrian government
has requested – and received – aid from Russian and Iranian forces.291
These forces have since commenced armed interventions in Syria
independent of Western efforts.292 These efforts, while facially
justified by reference to the fight against ISIL, have instead targeted
rebel forces fighting both ISIL and the Syrian government – and in
some instances rebel forces equipped and trained by the US.293 The
effect of Russian targeting decisions so far has been to strengthen
290. See, e.g. Alissa J. Rubin, France Says It Will Join Air Campaign Against ISIS in
Syria, N.Y. TIMES, Sept. 16, 2015, http://www.nytimes.com/2015/09/17/world/europe/franceisis-syria-airstrikes.html (reporting a change in French policy towards conducting airstrikes in
Syria because “the Islamic State had recently enlarged its territory to the point that it
threatened rebel groups near Aleppo, and the major road network that leads to the Syrian
capital, Damascus, and Lebanon”); Dan Bilefesky, British Pilots Have Been Conducting
Airstrikes in Syria, Defense Ministry Confirms, N.Y. TIMES, July 17, 2015, http://www.
nytimes.com/2015/07/18/world/middleeast/british-pilots-have-been-conducting-airstrikes-insyria-defense-ministry-confirms.html (confirming British airstrikes in Syria “even though
Parliament voted two years ago against military action there). For a discussion of the British
municipal and international legal conundrum see Dapo Akande, Embedded Troops and the
Use of Force in Syria: International and Domestic Law Questions, EJILTALK! (Sept. 11,
2015), http://www.ejiltalk.org/embedded-troops-and-the-use-of-force-in-syria-internationaland-domestic-law-questions/.
291. MacFarquhar, supra note 160; Russia’s Lavrov Says so far Only Syria Requested
Direct Military Assistance, REUTERS (Oct. 14, 2015), http://www.reuters.com/article/2015/10/
14/us-mideast-crisis-syria-russia-requests-idUSKCN0S812820151014
(detailing
Syrian
request); Russia Parliament Approves Military Move in Syria, BBC (Sept. 30, 2015),
http://www.bbc.com/news/world-middle-east-34400193 (detailing Russian strikes in Syria).
292. MacFarquhar,supra note 160 (“The lack of enthusiasm from Washington to
Russia’s initiatives on Syria has been a disappointment to the Kremlin, and the meeting with
Mr. Assad might put new pressure on the Obama administration to engage. Russia expressed
displeasure on Tuesday that an agreement signed between the Pentagon and the Ministry of
Defense earlier in the day had not gone further in forging cooperation in Syria”); Helene
Cooper, Michael R. Gordon & Neil MacFarquhar, Russian Strike Targets in Syria, but Not
ISIS Areas, N.Y. TIMES, Sept. 30, 2015, http://www.nytimes.com/2015/10/01/world/europe/
russia-airstrikes-syria.html. As of Oct. 21, 2015, Russia and the US have agreed upon very
limited co-ordination solely for the purpose of engagement directly between US and Russian
forces in the area. See Neil MacFarquhar, U.S. Agrees with Russia on Rules in Syrian Sky,
N.Y. TIMES, Oct. 20, 2015, http://www.nytimes.com/2015/10/21/world/middleeast/us-andrussia-agree-to-regulate-all-flights-over-syria.html (“At a Pentagon briefing, Peter Cook, the
department’s press secretary, said the agreement, called a memorandum of understanding,
established safety protocols requiring the Russians and the United States-led international
coalition fighting the Islamic State in Syria to maintain professional airmanship at all times,
use specific communication frequencies and establish a communication line on the ground.”).
293. Russian Strike Targets in Syria, but Not ISIS Areas, supra note 292.
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ISIL rather than weaken it, thus adding an additional layer of
complexity to the international response.294
The academic response to the US bombing campaign in Syria
has been pronounced.295 Thus, commentators state that in the absence
of Syrian consent, use of force in Syria would require U.N. Security
Council authorization.296 This Security Council authorization, of
course, is not forthcoming due to the alignment of the Russian
Federation with the Assad regime and alignment of the US with
opposition forces.297 Authorization of action in Syria would thus
appear to depend upon Syrian consent to military action.298 In the
current geopolitical environment, this would in essence mean that the
US campaign against ISIL within the scope of Syrian authorization
would free up Syrian forces to fight the Free Syrian Army more
effectively—thus supporting one lawless actor in the attempt to
degrade another.299 Contrary to Russian interests in the area, the US
and its Western allies for obvious reasons seek to act in Syria without
so strengthening the hand of the Assad regime.300 Consequently,
294. Anne Barnard & Thomas Erdbrink, ISIS Makes Gains in Syria Territory Bombed by
Russia, N.Y. TIMES, Oct. 9, 2015, http://www.nytimes.com/2015/10/10/world/middleeast/
hussein-hamedani-iran-general-killed-in-syria.html; Kareem Fahim & Anne Barnard, Russia
Makes an Impact in Syrian Battle for Control of Aleppo, N.Y. TIMES, Oct. 20, 2015,
http://www.nytimes.com/2015/10/21/world/middleeast/russia-makes-an-impact-in-syrianbattle-for-control-of-aleppo.html (reporting that Russian and Iranian operations significantly
strengthened pro-government forces and the rebel groups are calling upon each other to unite
against the pro-government advance). Developments are currently fluid and could lead to a
greater role of ISIL in the wake of rebel casualties or even a uniting of certain rebel and ISIL
forces against Iranian, Russian, and pro-government forces.
295. See, e.g., Louise Arimatsu & Michael Schmitt, The Legal Basis for War Against
ISIS Remains Contentious, GUARDIAN (Oct. 6, 2014), http://www.theguardian.com/
commentisfree/2014/oct/06/legal-basis-war-isis-syria-islamic-state (“Most, if not all,
international law experts agree that military operations against Isis in Iraq comport with
international law. The same cannot be said of the operations against Isis in Syria.”);
O’Connell, supra note 16; Trahan, supra note 16 (“Thus, while it is not impossible that air
strikes in Syria could be justified under international law, the Administration still needs to
demonstrate a solid legal foundation for them.”).
296. See O’Connell, supra note 16.
297. See ‘Re-energized Diplomatic Effort’ Needed to Break Deadlock Over Syria, New
Security Council President, UN NEWS CENTER, Sept. 4, 2013, http://www.un.org/apps/news/
story.asp?NewsID=45774#.VUD0DNF0wdU.
298. See discussion supra Section III.A.
299. See Jamieson & Miklaszewski, supra note 289.
300. Dennis Ross, A Strategy for Beating the Islamic State, How to Build a Regional
Coalition of the Willing Against the Terrorist Group, POLITICO, Sept. 2, 2014, http://www.
politico.com/magazine/story/2014/09/a-strategy-for-beating-isil-110524.html (“Small wonder,
therefore, that the administration is struggling now to decide what it should do against ISIL in
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much of the academic response has been stridently against the use of
force in Syria.
1. Collective Self-Defense
Key defenders of the action in Syria point predominantly to the
right of collective self-defense.301 Iraq has requested military aid in
combating ISIL.302 ISIL is operating in both Iraq and Syria.303 Thus,
effective intervention requires combating ISIL in both places.304 In
order for Western powers to intervene in Syria, collective self-defense
proponents submit, it must be shown that Syria is unwilling or unable
to stop ISIL from attacking Iraq from Syrian bases and/or that ISIL
fighters are targeted as part of a spill-over effect into Syria.305
As champions of the collective self-defense rationale readily
admit, the weakest link of their argument is proof with regard to the
unwilling-or-unable prong of the self-defense argument.306 Thus, it is
legally questionable whether a host state’s unwillingness or inability
to interdict non-state actors from launching attacks from its territory
into a neighboring state’s territory gives the neighboring state a right
to launch military operations in the host state.307 To the extent that
Syria. It wants to weaken ISIL without strengthening Assad, and yet not be drawn into the
Syrian civil war. Avoidance as a strategy in Syria, however, is no longer tenable.”).
301. Jennifer Daskal, Ashley Deeks, & Ryan Goodman, Strikes in Syria: The
International Legal Framework, JUST SECURITY, (Sept. 24, 2014), http://justsecurity.org/
15479/strikes-syria-international-law-framework-daskal-deeks-goodman/
(“The
U.S.
government received a letter from the Iraqi government explicitly asking for U.S. help in the
fight against ISIL, thus supporting a claim of collective self-defense. According to the U.S.
notification to the United Nations, Iraq has specifically requested that the United States lead
international efforts to strike ISIL sites inside Syria to suppress continuing attacks on Iraq and
protect Iraqi citizens. Under a theory of collective self-defense, the United States is assisting
Iraq in responding to the direct and ongoing threat posed by ISIL; the threat stems in part from
ISIL forces in Syria; and Syria is either unable or unwilling to quell the threat, thereby
justifying an incursion into Syria’s territory.”); Harold Hongju Koh, Obama’s ISIL Legal
Rollout: Bungled, Clearly. But Illegal? Really?, JUST SECURITY, (Sept. 29, 2014), http://
justsecurity.org/15692/obamas-isil-legal-rollout-bungled-clearly-illegal-really/ (agreeing with
Daskal, Deeks, and Goodman’s assessment).
302. See articles cited supra note 283.
303. Id.
304. Id.
305. Id.
306. See Daskal, supra note 301 (“The weakest link in the chain is the unwilling or
unable test.”).
307. Id. (As one of us has written, “The ‘unwilling or unable’ test is now a fairly well
settled part of the US government’s legal position. Nevertheless, it remains controversial under
international law.”) (quoting Ryan Goodman, International Law on Airstrikes in Syria, JUST
SECURITY (Aug. 28, 2014), http://justsecurity.org/14414/international-law-airstrikes-isis-
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international law does not recognize a right to self-defense against
non-state actors under such circumstances absent proof of complicity
of the host state in the actions of the non-state actors thus making the
acts of the non-state actor attributable to the host state, this argument
is dead on arrival as an international legal defense of the armed
response to lawless actors in Syria.308
Even assuming that the argument is sound as a matter of
international law,309 it would further have to be established that the
action in question is necessary and proportionate to protecting against
and suppressing the threat in question – or that the fight against ISIL
in Syria represents a true cross-border spill-over of the fight in Iraq.310
The premise that action against ISIL in Syria are necessary and
syria/); see also Monica Hakimi, Defensive Force Against Non-State Actors: The State of Play,
9 INT’L L. STUD. 1, 3 (2015) (“Efforts to clarify the law on the use of defensive force against
non-State actors are premature. The evident ambiguities and inconsistences in the practice
reflect an ongoing struggle over the law's proper content. This struggle cannot neatly be
resolved because the international legal system is, at bottom, decentralized.”).
308. See Armed Activities on the Territory of the Congo (Dem. Rep. Congo v. Uganda),
2005 I.C.J. 168, Dec. 19, 2005. For a discussion of the current state of I.C.J. jurisprudence, see
Christian Tams, The Use of Force Against Terrorists, 20 EUR. J. INT'L’L. 359, 385 (2009) (“In
between strict adherence to tradition and radical departure, the more convincing way to
accommodate the new practice is to opt for an approach which retains the traditional
understanding of self-defence as a justification for the use of force between states, but
recognizes the existence of special rules on attribution of terrorist activities. This more
moderate (but still important) re-reading indeed Seems to be borne out by state practice: states
invoking self-defence do make an effort to identify links between the territorial state and the
terrorist organization in question. What they no longer Seem to do is to identify links that are
strong enough to amount to ‘effective control’ as required by the Nicaragua test. Instead,
contemporary practice suggests that a territorial state has to accept anti-terrorist measures of
self-defence directed against its territory where it is responsible for complicity in the activities
of terrorists based on its territory—either because of its support below the level of direction
and control or because it has provided a safe haven for terrorists. In short, pursuant to this
more moderate re-reading, modern practice points towards a special standard of imputability in
relations between terrorist groups and host states, arguably most closely resembling
international rules against ‘aiding and abetting’ illegal conduct.”).
309. Hakimi, supra note 307 (“The operations in Syria have accentuated three
preexisting trends on the use of defensive force against non-State actors. First, the claim that
international law absolutely prohibits such force is losing ground. The reaction to the operation
against the Islamic State in Syria has been positive. Second, States are still floundering on
when to permit such force. Many States Seem unsure about the correct legal standard or
uncommitted to advancing a particular legal standard. Third, there is still a significant gap
between the norms that are actually implemented and the ones that are legitimized as law.
Most States tolerate operations that they are not yet willing to validate with legal language”).
310. See Daskal, supra note 301 (“Assuming, arguendo, acceptance of the unable or
unwilling test, the U.S. legal argument is sound, so long as the force used is necessary to
protect against the direct threat that ISIS poses to Iraq, and that the amount and nature of force
is proportionate to suppressing that threat.”).
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proportionate to protecting and suppressing ISIL’s threat in Iraq is
factually questionable given that ISIL currently appears to be taking
largely defensive positions.311 Further, the strikes undertaken against
ISIL by the US appear on their face to target areas away from the
Iraqi border.312 It would thus need to be substantiated that the strikes
in Syria are defensive in nature, e.g., intended to cut off supply lines
or other relief efforts for ISIL fighters in Iraq.313 As facts appear at the
moment, it seems rather that many of the strikes launched in Syria
had the different objectives of weakening ISIL’s presence in Syria, as
such—rather than supporting Iraqi self-defense efforts.314 These
strikes are largely consistent with the stated purpose of degrading and
destroying ISIL in its own right (as opposed to as an immediate
military threat to Iraq) and, though more tacitly, the United States
hopes to support Syrian rebel forces against the Assad regime, as well
as against ISIL.315
2. Humanitarian Intervention
Alternatively, it may also be possible to defend strikes against
ISIL as a humanitarian intervention.316 Humanitarian intervention is
not always clearly defined but typically refers to “the use of force by
a state (or group of states) in another sovereign state’s territory to
protect the host state’s citizens from . . . human rights abuses, mass
311. Oren Dorell, ISIL Takes Body Blows in Iraq While Affiliates Grow Elsewhere,
USA TODAY (Apr. 22, 2015), http://www.usatoday.com/story/news/world/2015/04/21/isil-isistaking-body-blows-while-arms-grow-elsewhere/26134545/ (reporting that ISIL is taking “body
blows” in Iraq and is rapidly losing territory in Iraq).
312. Military Strikes Continue Against ISIL Terrorists in Syria and Iraq, DEPT. DEFENSE
NEWS (Oct. 20, 2015), http://www.defense.gov/News/Special-Reports/0814_Inherent-Resolve
(detailing strikes near Ar Raqqah).
313. See Matthew Craig, Targeted Killing, Procedure, and False Legitimation, 35
CARDOZO L. REV. 2349, 2375 (2014) (“Proportionality requires that force be defensive and
used only to the extent necessary to meet defensive military objectives. Necessity demands
that there be no alternatives to the use of military force in response to the attack or threat.”).
314. Coalition Continues Airstrikes Against ISIL in Syria, Iraq, DEP’T DEFENSE NEWS
(Apr. 30, 2015), http://www.defense.gov/news/newsarticle.aspx?id=128700 (“The strikes were
conducted as part of Operation Inherent Resolve, the operation to eliminate the ISIL terrorist
group and the threat they pose to Iraq, Syria, the region, and the wider international
community. The destruction of ISIL targets in Syria and Iraq further limits the terrorist group's
ability to project terror and conduct operations, officials said.”).
315. More than 400 Military Personnel to Train Syrian Rebels, AL JAZEERA AM. (Jan.
16, 2015), http://america.aljazeera.com/articles/2015/1/16/syria-rebels-training.html (reporting
US decision to train Syrian rebels as part of the fight against ISIL).
316. Trahan, supra note 16 (noting the potential humanitarian intervention justification).
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atrocities, crimes against humanity, or genocide.”317 One particular
form of humanitarian intervention, Responsibility to Protect, or R2P
for short, has been invoked in the Syrian context.318 This rationale
would look directly to the atrocities committed by ISIL against the
civilian population in the areas it currently holds.319 This rationale has
the benefit of a more genuine link to the concern of many of the
coalition partners in fighting ISIL in the first place—i.e., to destroy a
network sowing lawlessness and committing unspeakable human
rights violations wherever it takes hold.320 But this rationale is
similarly as fraught with legal difficulties as the collective selfdefense rationale. Thus, its status in international law remains highly
contested.321 And, one might wonder, what is the need for a
humanitarian intervention against a non-state actor to the extent the
state in which non-state actor is perpetrating grave crimes is in fact
willing and able to conduct operations against that non-state actor?322
317. Jonathan E. Davis, From Ideology to Pragmatism: China’s Position on
Humanitarian Intervention in the Post-Cold War Era, 44 VAND. J. TRANSNAT’L L. 217, 221
(2011); see also Daphné Richemond, Normativity in International Law: The Case for
Unilateral Humanitarian Intervention, 6 YALE HUM. RTS. & DEV. L.J. 45, 46-7 (2003)
(discussing the ambiguity of the current state of international law regarding humanitarian
intervention).
318. On the definition of R2P, see International Law – The Responsibility to Protect –
Draft Security Council Resolution Referring Syrian Conflict to the International Criminal
Court Vetoed by Russia and China (13 in Favor, 2 Against). – U.N. SCOR, 69th Sess., 7180th
Mtg. at 4, U.N. DOC. S/PV.7180 (May 22, 2014), 128 HARV. L. REV. 1055, 1059 (2015) (“In
2001, the International Commission on Intervention and State Sovereignty (ICISS) proposed
R2P, an international norm that answered this question by recasting sovereignty as a
responsibility. The doctrine is not consistently defined, but the basic agreed-upon principles
are: (1) a state has the primary responsibility to protect the individuals within it; (2) if the state
is unable or unwilling to do so, the international community has a secondary responsibility to
protect, acting primarily through the U.N.; and (3) the norm's foundational purpose--to bring to
life ‘the notion that regardless of states' singular interest or lack of interest in intervention,
individuals should never be allowed to suffer at the hands of their governments.’”). On recent
developments regarding R2P in the Syrian context, see id. at 1055-59.
319. Trahan, supra note 16 (noting the potential humanitarian intervention justification).
320. See supra note 305.
321. See, e.g., Louis Henkin, Kosovo and the Law of “Humanitarian Intervention,” 93
AM. J. INT’L L. 824, 824 (1999) (“In my view, unilateral intervention, even for what the
intervening state deems to be important humanitarian ends, is and should remain unlawful.”);
Jide Nzelibe, Courting Genocide: The Unitended Effects of Humanitarian Intervention, 97
CAL. L. REV. 1171 (2009) (discussing the moral hazard in a humanitarian intervention rule
because of the temptation of minority provocation of a majority group to force humanitarian
intervention).
322. See discussion supra Section III.B.1. This concern is particularly pressing in the
R2P context, which appears to incorporate an unwilling-and-unable element into proposed
R2Ps norms. See supra note 318.
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The logic would be that the situation requires a humanitarian
intervention against both the non-state actor (ISIL) and the state actor
(Syria).323 It is questionable as a matter of policy whether a
humanitarian intervention rationale is available without the
commitment fully to see it through as a half-hearted humanitarian
intervention does little to alleviate the problem and does a tremendous
amount of additional damage.324
3. Threat to the Integrity of International Law
No matter the rationale, it seems that as Professor Craig Martin
pointed out in the context of threatened military action against the
Assad government for the regime’s use of chemical weapons, it
appears that it is necessary to violate international law to protect
international legal principles .325 In other words, it is not possible to
maintain all international laws; the integrity of international law is
threatened no matter how one acts.326 We have to choose between
which international legal norms (sovereignty or basic international
legal rights of the Syrian population) we wish to uphold and which
international legal norms we wish to violate.327
It thus again appears that lawlessness presents a particularly
trenchant problem: under the current geopolitical circumstances at
least, it is not formally possible to deal with lawlessness lawfully.
From an international legal perspective, we are asked to choose
between which fundamental rule of international law we wish to
honor in the breach.328 It is thus not a question of “if” lawlessness is
transferred from the municipal to the international plane, but of
“how” this occurs.
323. See Harold Hongju Koh, Syria and the Law of Humanitarian Intervention (Part II:
International Law and the Way Forward), JUST SECURITY (Oct. 2, 2013), http://justsecurity.
org/1506/koh-syria-part2/ (arguing that intervention by the United States in Syria against the
Syrian government could be justified on the ground of humanitarian intervention).
324. See McCain, supra note 38 (pointing out this problem in proposed US military
action in Syria).
325. See Craig Martin, When Should We Violate International Law to Enforce It?,
HUFFINGTON POST (Sept. 9, 2013), http://www.huffingtonpost.com/craig-martin/when-shouldwe-violate-in_b_3891117.html.
326. See id. (“I would suggest that the fundamental criteria for determining if a violation
of international law may be justified or excused on the grounds that it is necessary to address
some other violation of the law, is the relative effects that the two illegal actions would have
on the integrity of the legal system itself.”).
327. See id.
328. See id.
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C. The Transnational Transference of Lawlessness—Comparing
Syria and Iraq
When the international legal issues of addressing the ISIL
problem in Iraq and Syria are viewed individually, one might fairly
surmise that the underlying problem is not so much ISIL’s
lawlessness and more the indeterminacy of international law more
generally.329 The comparison of both scenarios—the response to ISIL
in Iraq and ISIL in Syria—reveals that lawlessness in fact presents a
bigger challenge that exceeds the ordinary substantive indeterminacy
of international law.330 The ISIL scenario permits one to isolate the
various constitutive factors of lawlessness because of the cross-border
implications of ISIL’s actions.331 In doing so, it is possible to map the
transnational transference of lawlessness from the municipal to the
international plane.
1. Transnational Transference of Pragmatic Lawlessness
The response to ISIL in Iraq showcases that pragmatic
lawlessness of its own right does not create significant problems on
the international plane.332 In principle, state consent to assist in the
removal of the pragmatically lawless situation will permit
international actors to assist.333 The control/authority dichotomy
readily explains why.334
At an early stage at least, pragmatic lawlessness simply
represents a loss of control rather than a loss of authority of the
requesting government.335 This loss of control threatens the capability
of the requesting government to maintain basic law-and-order for its
citizens internally and, in the context of serious instances of
pragmatic lawlessness, to participate with the same efficacy in
329. For a discussion of a similar problem in the context of Ukraine, see Frédéric Gilles
Sourgens, Functions of Freedom, Privacy, Autonomy, Dignity, and the Transnational Legal
Process, 48 VAND. J. TRANSNAT’L L. 471 (2015).
330. See id.
331. MARK CHANG, PRINCIPLES OF SCIENTIFIC METHODS 50 (2014) (“A key concept in
experimentation is the factor isolation technique: the experimenter manipulates the
experimental condition so that the outcomes come from two different conditions, with and
without the main putative causes (independent variables), while other nuisance variables are
balanced balanced using the technique called randomization.”).
332. See supra Part IV.A.1.
333. See supra Part IV.A.1.
334. See supra Part I.A.2.
335. See supra Part III.A.
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international decision-making processes.336 The intervening state thus
simply re-establishes the status quo already part of, and deemed
authoritative through, the current state of international law. In this
context, an international actor has the same authority in assisting the
municipal government in establishing control as the municipal actor
has itself.337 In a purely pragmatic lawlessness scenario, this suggests
that both the international and municipal actor have full authority
supporting their respective actions.338
Two questions can arise. First, what would occur if municipal
authoritative processes of decision support radically different
constitutive values from those incorporated in international
authoritative decision-making.339 Pragmatic lawlessness might erupt
in a Taliban-like State (assume a gang of narco-traffickers seeks to
use part of the country as a base of operations and terrorizes the local
population without the ability of the Taliban-like State to re-assert
control).340 Would an international actor be entitled to assist a
Taliban-like regime that does not subscribe to basic human rights
guarantees to all kinds of minorities in re-establishing its control over
the area in question?341 The transnational transference thesis would
answer this question in the affirmative in the sense that it is not the
pragmatic lawlessness that creates the problem of intervention; it is
rather the question whether any aid can be given to the Taliban-like
regime. This question has little to do with the pragmatic lawlessness
erupting in such a scenario.
Second, what about situations, in which loss of control begins to
affect loss of authority? The longer pragmatic lawlessness is
permitted to exist, the stronger its effect on authority can become.342
336. Compare supra Part I.A.2 (defining control), with supra Part III.A (defining
pragmatic lawlessness).
337. See supra Part III.A.
338. See supra Part III.A.
339. See supra Part I.A.3.
340. Such a scenario is not far-fetched. See Najibullah Gulabzoi, The Narco-State of
Afghanistan, DIPLOMAT (Feb. 12, 2015), http://thediplomat.com/2015/02/the-narco-state-ofafghanistan/.
341. A similar question arguably arose in the context of disaster relief in Myanmar
following a major earthquake. See DREF Operation Update, Int’l Fed. Red Cross & Red
Crescent Soc’y, Myanmar: Earthquake, Update No. 1 (May 5, 2011), http://www.ifrc.org/docs/
appeals/11/MDRMM00401.pdf. At the time, Myanmar had not yet begun a historic program
of reforms and was therefore subject to significant international sanctions. See OFAC Fact
Sheet, Dept. of the Treasury, Burma Sanctions Program (Jan. 29, 2014), at 3,
http://www.treasury.gov/resource-center/sanctions/Documents/burma.pdf.
342. See supra Part III.B.
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People lose faith in a government incapable of exercising control for a
prolonged time; this loss of faith is exacerbated if the government
unsuccessfully uses ever more indiscriminate means to re-establish
control, thus giving rise to a question whether formal lawlessness
might not ensue.343 This scenario showcases that the lines between
pragmatic and formal lawlessness are fluid.344 In fact, the situation in
Iraq at the moment suggests, as Professor Akande and Vermeer
correctly presaged, a loss of control that is at the tipping point
towards formal lawlessness.345 Answering this question will begin to
make relevant the concerns of a transnational transference of formal
lawlessness discussed in the next Part, if to a lesser degree.346 Loss of
authority transfers because the international actor can act only with
the authority commensurate to the municipal actor. A loss of authority
on the municipal level thus has international consequences. A simple
return of the state actor to the same control as it had before the
eruption of pragmatic lawlessness no longer would return the
international community to the status quo ante precisely because of
the intervening loss of authority of the home government with all the
social consequences this entails.347
2. Transnational Transference of Formal Lawlessness
The Syrian situation readily demonstrates the first means by
which formal lawlessness transfers from the municipal to the
international plane. The consent of a formally lawless actor (the
Syrian regime) is not a sufficient basis for an international actor to
combat even serious pragmatic lawlessness (ISIL) on that regime’s
formally sovereign territory (Raqqa).348 The transnational transference
of pragmatic lawlessness looks to the authority of the home regime as
a guarantee of the authority of international intervention.349 In a
formally lawless regime, this is precisely absent.350 Pragmatic
343. See id.
344. Cognitively, it is not possible to automate relevant responses. See Chad M.
Oldfather, Judging, Expertise, and the Rule of Law, 89 WASH. U. L. REV. 847, 881 (2012)
(noting the importance of fluid intelligence in legal decision in contradistinction to automated
responses to input).
345. See supra Section IV.B.2.
346. See infra Section IV.C.2.
347. See supra Section I.A.2.
348. See supra Section IV.B.
349. See supra Section IV.C.1.
350. See supra Section III.B.
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lawlessness on the territory of a formally lawless actor thus requires
some additional authority than simply the authorization of the
formally lawless regime.
This first consequence of transnational transference is practically
instructive. It means that Russian intervention on the side of the
Syrian regime against, for instance, the Free Syrian Army cannot be
justified by reference to the consent of the Syrian regime.351 There
would be no authority for such intervention because of the loss of
authority of the Syrian regime.352 In this sense, formal lawlessness
acts as a limit to subjective theories of the recognition of governments
– as a matter of logic, it is impossible to recognize the government of
a failed state as such a state is defined by the absence of effective or
legitimate governance structures.353
The Syrian situation also demonstrates a second, more
significant means of transnational transference of lawlessness. Formal
lawlessness sets up a clash between the sovereign (i.e., the state de
jure ruled by the lawless regime) and core rights of its residents (i.e.,
their civil and political rights).354 The role of sovereignty in the
international system has a constitutional nature.355 The UN system is
premised upon the role of states, their formal equality, and the noninterference in internal affairs of equal sovereigns.356 The role of core
351. Suleiman al Khalidi & Laila Bassam, In Moscow, Syrian Minister Says Russia
Promises Aid, REUTERS, June 29, 2015, http://www.reuters.com/article/2015/06/29/usmideast-crisis-hasaka-idUSKCN0P90VZ20150629 (“Syria's foreign minister said in Moscow
on Monday Russia had promised to send political, economic and military aid to his country,
where the army is coming under some of the heaviest pressure since the start of the civil
war.”); Michael R. Gordon & Eric Schmitt, U.S. Moves to Block Russian Military Buildup in
Syria, N.Y. TIMES, Sept. 8, 2015, http://www.nytimes.com/2015/09/09/world/europe/usmoves-to-block-russian-military-buildup-in-syria.html (detailing both the Russian military
buildup in Syria and the US attempts to thwart that buildup).
352. See supra Section III.B.
353. Compare CRAWFORD, supra note 183, at 722 (quoted above) with CRAWFORD,
supra note 183, at 80 (discussing the distinctions between de facto and puppet governments).
The thrust of the theorized account of formal lawlessness developed above is that by the time
that an area has become not only pragmatically but fully formally lawless, any regime
claiming to rule it has the international character of a puppet regime only (a regime that cannot
request annexation or intervention) because the government is no longer de facto or otherwise
de jure in power except for the support of the foreign power seeking to prop it up. Id.
354. Dustin N. Sharp, Addressing Dilemmas of Global and Local in Transitional Justice,
29 EMORY INT’L L. REV. 71, 74 (2014) (noting a similar clash in the context of transitional
justice development programs).
355. Ernst-Ulrich Petersmann, How to Constitutionalize International Law and Foreign
Policy for the Benefit of Civil Society, 20 MICH. J. INT’L L. 1, 12 (1998) (noting the
constitutional nature of sovereign equality in international law).
356. See id.
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human rights similarly is gaining constitutional value.357 It is one of
the hallmarks of formal lawlessness or failed states that they precisely
do not provide their residents with even the most basic guarantees
such as the absence of arbitrary rule through imposition of sheer and
brutal coercion, as, for instance, in the current Syrian scenario.358
The transnational transference of formal lawlessness thus
consists of requiring the resolution of a fundamental clash between
weight-bearing parts of the international legal order.359 This is no
longer possible by simply “applying” the law by means of a textualrule-based mode of decision-making.360 There is no rule that can
remediate the clash.361 To answer the question thus requires
application of a context-policy-based mode of decision-making.362
The goals relevant to this inquiry include returning those subject
to formally lawless power structures to authoritative rule, i.e., rule
that is consistent with “participation in decision in accordance with
community perspectives about who is to make what decisions, by
what criteria, and by procedures; the reference is empirical, to a
certain frequency in the perspectives of people who constitute a given
community.”363 They also must include protecting regional stability,
as well as global peace and security.364 They finally must look to
finding a solution that is realistic in the sense of being enforceable so
as to avoid a loss of authority of international law for failing to deal
effectively with the crisis.365 Balancing these various goals will
require significant creativity and vision as the goals themselves can
run counter to each other in many instances.366 That being said, the
greatest achievements in international peacekeeping of the late 20th
century certainly have shown that such tasks can in fact be
accomplished within legal confines.367
357. See id.; see also Destaw Yigzaw, Hunger and the Law: Freedom from Hunger as a
Freestanding Right, 36 HOUS. J. INT’L L. 655, n.97 (2014) (“Human rights possess constitutive
value and must be protected regardless of instrumental considerations.”).
358. See supra Section III.B.
359. See Petersmann, supra note 355, at 12.
360. See supra Section I.B.
361. See supra Section I.B.
362. See supra Section I.B.
363. LASSWELL & MCDOUGAL, supra note 43, at 26.
364. See Jeremy Farrall, The Future of UN Peacekeeping and the Rule of Law, 101 AM.
SOC’Y INT’L L. PROC. 160, 163 (2007).
365. REISMAN, supra note 14, at 213.
366. Id. at 185.
367. Id. at 386.
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3. Transnational Transference of Functional Lawlessness
The transnational transference of functional lawlessness stakes
out the limit of what international law can achieve. Functional
lawlessness causes one of the constituent goals of the policy-contextmode of decision-making to fail.368 This failure means that no legal
decision can be fashioned in even this capacious mode of decisionmaking.369 Instead, decisions must be made unaided by legal
guidance—decisions that in ultimate consequence will be, in the sense
of Niccolò Machiavelli or Carl Schmitt sense, dictatorial but, if well
executed, ultimately vindicated.370
The principal problem of applying a policy-context-based mode
of decision making to functional lawlessness is that functional
lawlessness has eviscerated the social fabric binding individuals
together.371 Civil war has eviscerated the structures and processes
necessary to recreate “participation in decision in accordance with
community perspectives about who is to make what decisions, by
what criteria, and by procedures” because “the reference is empirical,
to a certain frequency in the perspectives of people who constitute a
given community.”372
The evisceration of authority within the local community means
that the goal of returning a people to a government that is
authoritative has now become logically impossible—the empirical
reference point has been removed.373 This failure cannot be
compensated for by simply focusing on the other goals of the policycontext-based mode of decision-making such as regional stability,
international peace and security, and maintaining the authority of
international law.374 Blocking out the return of a people to
authoritative governance structures is to treat it as a simple means
towards international peace and security.375 Such a course of action is
368. Section IV.C.3.
369. See supra Section I.B.
370. SCHMITT, supra note 24, at 42; SKINNER, supra note 12, at 184. Carl Schmitt is a
highly influential German right-wing critic of public international law (and public law in
general). MARTTI KOSKENNIEMI, THE GENTLE CIVILIZER OF NATIONS, THE RISE AND FALL
OF INTERNATIONAL LAW 1870-1960 at 239 (2001). For discussion of Schmitt, see supra notes
23-24 above. For a discussion of Machiavelli, see supra note 12.
371. See supra Section III.C.
372. LASSWELL & MCDOUGAL, supra note 43, at 26.
373. Compare id., with supra Section III.C (defining functional lawlessness).
374. See supra Section IV.C.2.
375. See supra Section IV.C.2.
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ultimately inconsistent with the demands of human dignity.376 Any
course so deeply inconsistent with human dignity in turn cannot but
corrode the authority of the decision making process adopting it.377
This means that in the context of functional lawlessness, one
must fashion a decision-making process that will become authoritative
without a point of reference to existing community practices.378 It is
to make the most fundamental form of decision for a community
without its participation or consent.379 It can only be justified with
hindsight.380 This constitutes one of the most intrusive forms of
paternalistic domination imaginable.381
This does not mean that inaction is an option. Both inaction and
over-reaction are likely to corrode the authority of international legal
processes.382 Most immediately, international law would visibly fail
to take effective action to protect regional stability and international
peace.383 In the case of inaction, law would lose authority because it
would appear too weak to be meaningful in addressing the most
significant international crises of our day.384 In the case of
overreaction through excessive use of force, international law would
lose authority by endorsing strategies that would seem patently unjust
to most observers and thus create doubts about the legitimacy of
international prescription in general.385 Functional lawlessness or
configurations nearing it thus make action—decision—imperative to
re-establish authoritative decision structures in the functionally
lawless space.386 Dangerously, it requires the establishment of
authority without authority for doing so.
It is in this sense that the maintenance of international law
requires a fundamental deviation from it. Schmitt (and Machiavelli)
376. NUSSBAUM, supra note 44, at 29-35 (defining dignity and its place in political
decisionmaking).
377. Id.
378. LASSWELL & MCDOUGAL, supra note 43, at 26.
379. See Stanley Ingber, Judging Without Judgment; Constitutional Irrelevancies and
the Demise of Dialogue, 46 RUTGERS L. REV. 1473, 1479 (1994) (noting the importance to
constitutive process of the involvement of the citizenry in constitutional deliberation).
380. SCHMITT, supra note 24, at 21.
381. PHILIP PETTIT, REPUBLICANISM: A THEORY OF FREEDOM AND GOVERNMENT
(1997); QUENTIN SKINNER, LIBERTY BEFORE LIBERALISM (1998).
382. See Section I.A.2.
383. See Farrall, supra note 364, at 163.
384. REISMAN, supra note 14, at 213.
385. Id. at 159.
386. Id. at 159, 213.
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are correct in noting that in such exceptional circumstances, “from the
point of view of content of the underlying norm, the constitutive and
specific moment of decision is both new and foreign. Decision,
normatively, is born from nothingness. The legal force of decision is
other than the result of its justification.”387 This decision is, as Schmitt
predicted, both exceptional and dictatorial because it at the same time
lacks and creates authority.388 With regard to such decisions, it is the
end of successfully finding structures that can become authoritative
that justifies the means to put them place – and nothing else.389 Even
on the international level, law has met its end.
CONCLUSION: A SKETCH FOR DEALING WITH LAWLESSNESS
IN THE ISIL CONTEXT
The Article so far has been largely critical. It has pointed out that
the hope for municipal or international legal decision in dealing with
ISIL is slender, if it exists at all.390 It has also pointed out that failure
to act or overreaction would have disastrous consequences for
international law more broadly.391 Lawlessness, far from being a
license to do as one pleases, is an exception to lawful order that
requires a tight rope act if one is to avoid doing lasting damage to all
lawful order.392 But how is one to act in response to ISIL?
What this Article has elucidated is that both scholarly exchanges
and public debate focus on the wrong question: whether and how to
wrest control of Syrian and Iraqi territory from ISIL.393 They thus
focus on control.394 This focus on control loses something important
from view: the underlying problem of both formal and functional
lawlessness concerns authority, and not control;395 the Article has
further shown that a reaction that is tailored first and foremost in
terms of regaining control at all costs tends to exacerbate lawlessness
rather than to cure it.396
387.
388.
389.
390.
391.
392.
393.
394.
395.
396.
SCHMITT, supra note 24, at 42.
Id. at 83.
Id. at 42; SKINNER, supra note 12, at 184.
See Sections III.C & IV.C.3.
See Section IV.C.3.
Cf. Vermeule, supra note 23, at 1149 (defending a Schmittian black-hole theory).
See citations in supra note 14.
See Section I.A.2 (defining control).
See Sections III.B-C.
See Sections III.B-C.
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The question thus becomes: how do we re-establish authority in
the face of the calamities suffered by the peoples afflicted by formal
and functional lawlessness in the Middle East?397 Conceptually, the
answer to this question looks to defending and bolstering the
capabilities for human development of the affected population both in
situ and in diaspora.398 As human development research has shown, it
is these capabilities that permit the bolstering of social structures in a
fertile or exponential manner.399 The best answer thus looks to
encouraging the capabilities of this population to self-govern again in
the personal, economic, social, and political sphere.400
The concluding Part of this Article sketches four strategies that,
if combined, could be central to any project to protect the capabilities
of the afflicted population and permit re-establishment authoritative
decision-making processes in the future. First, it is imperative to
maintain as much of the affected social fabric as possible so as to
protect the predicate for future authoritative decision-making.401 This
is currently not possible in-country in Syria and arguably beyond.402 It
thus requires a concerted effort to treat refugees from the area
responsibly, respectfully, and with a view to foster their human
development.403 Failure to do so irreversibly destroys the ravaged
social fabric and thus any chance for the re-introduction of
authoritative decision-making through it. Just like in a ten-car pile up
on a busy highway, the loss of a limb cannot be remedied at the
scene; it is nevertheless important to keep as much of the severed
limb intact to permit its later re-attachment to the body. Central to the
success of any such endeavor is to provide educational opportunities
to the refugees and the ability to earn a living wage while away from
home.404 It further requires that every effort be undertaken to save as
many people as possible from the clutches of the worst fighting rather
than leaving the management of refugee streams to human
397. See Section IV.C.3.
398. NUSSBAUM, supra note 44, at 29-35.
399. Id. at 44-45.
400. Id. at 29-35.
401. See Section IV.C.3.
402. See Section III.C.
403. T. Alexander Aleinikoff & Stephen Poellot, The Responsibility to Solve: The
International Community and Protracted Refugee Situations, 54 VIRG. J. INT’L L. 195, 207-10
(2014) (discussing the problem of refugee situations from a human development perspective).
404. See NUSSBAUM, supra note 44, at 44, 98, 152 (noting that education and economic
independence are dominant fertile capabilities).
416
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smugglers.405 It finally requires that the view of these refugees be
taken into account in military and foreign policy decisions affecting
their home to lessen the authority gap discussed in the previous
Part.406
The West, and particularly Europe, has been slow in taking the
necessary steps to maintain the chance of future authoritative
decision-making in the area. Middle Eastern and African refugees in
France live in such horrid conditions as to attempt fleeing once
again—this time from France to England.407 Refugees in East
Germany are exposed to unacceptable xenophobic and anti-Semitic
threats.408 Refugees from the Middle East drown on a regular basis by
attempting passage to safer European shores because they rely on
smugglers rather than other means of egress.409 Although European
states have made facial strides to accept refugees from the area,410 so
far the response has been to interdict safe-passage by land (and force
refugees to take their own lives and the lives of their children in their
own hands) rather than to ease this humanitarian crisis.411 In contrast
405. See Orlando Crowcroft, ISIS: Worst Refugee Crisis in a Generation as Millions
Flee Islamic State in Iraq and Syria, INT’L BUS. TIMES (Jun. 17, 2015),
http://www.ibtimes.co.uk/isis-worst-refugee-crisis-generation-millions-flee-islamic-state-iraqsyria-1506613 (discussing the severity of the refugee crisis and the role of human smugglers).
406. See Section IV.C.3.
407. See Stephen Castle & Aurelien Breeden, Britain and France Scramble as Channel
Becomes Choke Point in Migrant Crisis, N.Y. TIMES, July 29, 2015, http://www.nytimes.com/
2015/07/30/world/europe/britain-and-france-scramble-as-channel-crossing-attempts-bymigrants-continue.html (detailing the refugee crisis in Northern France).
408. A Disgrace for Tröglitz, Refugee-Home Fire Spurs Xenophobia Fears, DER
SPIEGEL (Apr. 7, 2015), http://www.spiegel.de/international/germany/a-refugee-attack-andthe-specter-of-xenophobia-in-germany-a-1027345.html (noting arson attacks on refugee
facilities in Saxony-Anhalt).
409. Sarah Almukhtar et al., Mediterranean Sea, N.Y. TIMES, May 21, 2015, http://
www.nytimes.com/interactive/2015/04/20/world/europe/surge-in-refugees-crossing-themediterranean-sea-maps.html (detailing the crisis).
410. Compare Melissa Eddy, Angela Merkel Calls for European Unity to Address
Migrant Influx, N.Y. TIMES, Aug. 31, 2015, http://www.nytimes.com/2015/09/01/world/
europe/germany-migrants-merkel.html (reporting German Chancellor Dr. Angela Merkel’s
call for inclusion of refugees from the Syrian conflict), with Melissa Eddy, Rick Lyman &
Alison Smale, Germany Orders Curbs at Border in Migrant Crisis, N.Y. TIMES, Sept. 13,
2015, http://www.nytimes.com/2015/09/14/world/europe/germany-emergency-measures-euro
pean-migrant-crisis.html (reporting that “[w]ith record numbers of migrants pouring across the
Hungarian border and rushing west, Germany, the country that had been the most welcoming
in Europe, suddenly ordered temporary border restrictions on Sunday that cut off rail travel
from Austria and instituted spot checks on cars.”).
411. Sarah Almukhtar, Josh Keller & Derek Watkins, Closing the Back Door to Europe,
N. Y. TIMES, Sept. 18, 2015, http://www.nytimes.com/interactive/2015/09/15/world/europe/
migrant-borders-europe.html.
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to a military defeat of ISIL, changing these policies is eminently in
Western control.412 Failing to change them is not to take seriously the
erosion of authority structures in the Middle East and the dire need to
combat it.
The strides made—and unmade—in dealing with the refugee
crisis are significant not only in the context of the humanitarian crisis
for the Syrian civilian population.413 Rather, addressing this issue has
significant implications for the national security of member states of
the European Union and the United States. Policy efforts so far have
not addressed this crucial link between the refugee crisis and the fight
against ISIL, treating it instead as a migratory threat in its own
right.414 A failure to continue to do so lends itself to disastrous
consequences in medium and longer term.
Second, authority-building strategies must be put into place
while any war on ISIL is going on. This engagement is not one
principally about territorial control;415 it is one about creating
accountable and sustainable governance structures in a region deeply
divided by sectarian distrust.416 Any successful attempt at reintroducing authoritative decision-making processes must bridge this
distrust and prejudice between Shi’ites and Sunnis, Kurds and Turks,
Christians and Muslims, men and women, gay and straight in the
region.417 One cannot hope to achieve this end quickly. But it must be
attempted such as by expanding existing educational and outreach
programs in the region so as to permit emergence of civic structures
capable of supporting authoritative decision-making in the future.418
412. Id.
413. Andrew Higgins, Migrant Crisis Leads to Calls for Tighter Borders in Europe,
N.Y. TIMES, Oct. 15, 2015, http://www.nytimes.com/2015/10/16/world/europe/migrant-crisiseurope.html (quoted in supra note 229).
414. Closing the Back Door to Europe, supra note 411(depicting efforts to disrupt
refugee flows).
415. See Sections III.B-C, IV.C.2-3.
416. Id.
417. See Tim Arango, Sunnis Fleeing ISIS Find Few Doors Open Elsewhere in Iraq,
N.Y. TIMES, May 27, 2015, http://www.nytimes.com/2015/05/28/world/middleeast/sunnisfleeing-islamic-state-fight-turned-away-in-iraq.html (discussing the sectarian problems
underlying Sunni refugees in Iraq).
418. On the role of education in overcoming sectarian prejudice, see CLIVE HARBER,
EDUCATION AND INTERNATIONAL DEVELOPMENT: THEORY, PRACTICE, AND ISSUES 92-3
(2014); see also USAID, Iraq – Complex Emergency, Fact Sheet #6 (Jun. 26. 2015),
http://www.usaId.gov/sites/default/files/documents/1866/iraq_ce_fs06_06-26-2015.pdf
(detailing ISIL-responsive aid programs including educational programs in Iraq).
418
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Third, coercive strategies must be aimed not only at military
targets but also at protecting assets important to future authority
structures. ISIL is actively destroying the human, intellectual and
cultural patrimony of the region in order to erase any physical
memory of a more inclusive social past.419 Interdicting this
destruction
has
significant
importance.420
Re-establishing
authoritative decision-making processes will be a less difficult task
the more of the patrimony can be saved and incorporated.421 And
without those decision-making processes in place, ISIL (or its
successor organizations) will quickly be able to raise both more
troops and monetary support to maintain them.422
To date, the response to ISIL has not addressed the protection of
this important patrimony. In failing to do so, important myths and
symbols of a unified, multi-religious and multi-ethnic Middle East are
lost. Ceding the ground to ISIL’s purposeful destruction of these
symbols is to allow ISIL to succeed in its attempts at re-definition of
the local discourse that cannot be over-estimated; it is the erasure of
millennia of history and regional identity central to the reestablishment of authoritative governance structures. Or, to put it
differently, one wonders what the state of European integration today
would be had General Choltitz followed rather than refused the order
to destroy Paris and make it “nothing but a blacked field of ruin”
rather than letting it fall into Allied hands.423
Fourth, international assistance must remain available in the
long haul and must be aimed at re-growing local social structures
rather than simply transplanting Western superstructures in their
place.424 Such efforts require long-term economic, legal and
419. See Susan Gonzalez, ISIS’ Destruction of Cultural Antiquities: Q&A with Eckart
Frahm, YALENEWS (Mar. 16, 2015), http://news.yale.edu/2015/03/16/isis-destruction-culturalantiquities-qa-eckart-frahm (detailing the scope of cultural destruction by ISIL).
420. See id. (“ISIS tries to eradicate Assyrian sites because the ancient civilization they
represent was used by previous political leaders in Iraq to build some kind of national identity
across religions, sects, and ethnic groups — something to which ISIS is strongly opposed.”).
421. Id.
422. See REISMAN, supra note 14, at 245.
423. COLIN JONES, PARIS, THE BIOGRAPHY OF A CITY 424 (2004). The importance of
the protection of cultural patrimony in WWII was recently made into a motion picture, The
Monuments Men, starring George Clooney (Columbia Pictures, Smokehouse Pictures, Studio
Babelsberg 2015).
424. For a fuller discussion, see Sharp, supra note 354, passim (discussing the problem
of the local-global mix in rebuilding post-conflict transitional societies).
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development support.425 Failing to commit now to such a long-term
approach is again a failure to understand an authority problem and
mistaking for a problem of insufficient control instead—with
potentially as disastrous consequences as when the US failed to
provide such assistance to Afghanistan following the mujahedeen’s
military success to cause a withdrawal of Soviet forces in 1989.426
In sum, lawlessness as such does not represent a simple absence
of control mechanisms as current policy responses to ISIL would have
one believe.427 Lawlessness instead eviscerates the social fabric
without which authoritative decision-making becomes impossible.428
This loss of authority transfers transnationally with alarming speed
not just in its corrosion of international legal mechanisms, as
discussed in the Article so far, but socially; most noticeably in the
current crisis, the inflow of Western fighters with no ties to the region
or Islam on ISIL’s side of the conflict is just one symptom of such a
broader contagion.429
The current response even in the context of this social contagion
has been to identify a source to attack and then apply coercive
measures, in the case of Western fighters, social media and the
Internet.430 As one famous semiotics professor pointed out in a
425. See Camelia Minoiu & Sanjay G. Reddy, Development Aid and Economic Growth:
A Positive Long-Run Relation 4 (IMF Working Paper, WP/09/118, 2009), https://www.imf.
org/external/pubs/ft/wp/2009/wp09118.pdf (connecting even growth in GDP (rather than
human development) to development aid).
426. RICHARD GRANT & JAN NIJMAN, THE GLOBAL CRISIS IN FOREIGN AID 40 (1998)
(noting that with the end of the Cold War in 1990, the “biggest losers were former Cold War
allies Pakistan, the Philippines, and Afghanistan.”).
427. See citations in supra note 14.
428. See Sections III.C and IV.C.3.
429. See, e.g., Andrew Higgins, A Norway Town and Its Pipeline to Jihad in Syria, N.Y.
TIMES, Apr. 4, 2015, http://www.nytimes.com/2015/04/05/world/europe/a-norway-town-andits-pipeline-to-jihad-in-syria.html (detailing the recruitment of Norwegian troubled youth by
ISIL); Jessica Stern & J.M. Berger, ISIS and the Foreign Fighter Phenomenon, ATLANTIC
(Mar. 8, 2015), http://www.theatlantic.com/international/archive/2015/03/isis-and-the-foreignfighter-problem/387166/ (“According to Scott Atran, Western volunteers are often
‘immigrants, students, between jobs or girlfriends . . . looking for new families of friends and
fellow travelers. For the most part they have no traditional religious education and are ‘born
again’ into a radical religious vocation through the appeal of militant jihad.’ Social acceptance
and reinforcement are important factors.”).
430. Compare Jeff John Roberts, Google Warns of “Viral Moment” for ISIS on Social
Media, FORTUNE (Jun. 24, 2015), http://fortune.com/2015/06/24/google-isis/ (“European
authorities have created a new police unit whose goal is to scour social media for ISIS
accounts and remove them within two hours”), with Melissa Eddy, Germany Bans Support for
ISIS, N.Y. TIMES, Sept. 12, 2014, http://www.nytimes.com/2014/09/13/world/europe/
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different context, this again is to fall prey to entirely too facile a
misdiagnosis:
The wretches who roam around aimlessly in gangs and kill
people by throwing stones from highway bridges or setting fire to
a child – whoever these people are – turn out this way not
because they have been corrupted by computer “new speak”
(they don’t even have access to a computer) but rather because
they are excluded from the universe of literature and from those
places where, through education and discussion, they might be
reached by a glimmer from the world of values that stems from
and sends us back again to books.431
If we wish to turn back the national security threat that is ISIL,
we can hope to succeed only if we combine this social perspective
with the more traditional intelligence and military panache currently
on display on both sides of the Atlantic. We must take seriously the
corrosive effect of lawlessness on authority. And we must take
seriously that this corrosive effect cannot be geographically contained
but transfers transnationally entirely uninhibited by the coercive
barriers placed its way until authoritative social structures have been
repaired in their own right.
POSTSCRIPT
Shortly before this Article was due to go to press, three teams of
extremists on November 13, 2015, committed several coordinated
mass shootings and bombings in Paris.432 The mass shootings and
bombings killed more than 132 persons and injured 415.433
ISIL/Daesh has since claimed responsibility for the atrocities.434
French President François Hollande called the November 13 events
“un acte de guerre”—an act of war—and promised that France would
germany-bans-support-of-isis.html (“Under the new restrictions, all displays of support for
ISIS, and all efforts aimed at enticing Germans to join the group, are prohibited.”).
431. UMBERTO ECO, ON LITERATURE 4 (Martin McLaughlin trans., 2002).
432. Adam Nossiter, Aurelien Breeden, and Katrin Bennhold, Three Teams of
Coordinated Attackers Carried Out Assault on Paris, Officials Say; Hollande Blames ISIS,
N.Y. TIMES, Nov. 14, 2015, http://www.nytimes.com/2015/11/15/world/europe/paris-terroristattacks.html?ref=world&_r=0.
433. Aurelien Breeden, Death Toll in Paris Attacks Rises to 132, Hospital Says, N.Y.
TIMES, Nov. 15, 2015, http://www.nytimes.com/live/paris-attacks-live-updates/death-tollsrises-to-132-paris-hospital-system-says/.
434. Rukmini Callimachi, ISIS Claims Responsibility, Calling Paris Attacks ‘First of the
Storm,’ N.Y. TIMES, Nov. 14, 2015, http://www.nytimes.com/2015/11/15/world/europe/isisclaims-responsibility-for-paris-attacks-calling-them-miracles.html?ref=world.
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act “sera impitoyable”—without mercy—in its response.435 French
Prime Minister Manuel Valls elaborated that “nous devons anéantir
les ennemis de la République”—“we must annihilate the enemies of
the Republic.”436 Much of what happened on November 13, 2015, at
the time of writing this postscript, remains unclear. But a few salient
points have even now emerged:
First, Daesh’s lawlessness has found its way from Syria to
Europe. Some of the November 13 murderers were radicalized French
nationals inspired by Daesh,437 and others may have been hiding
amongst the refugee population making its way from Syria to
Europe.438 This suggests that the transnational transference of
lawlessness latches both onto existing trends of radicalization in the
West and refugee streams coming from the Middle East and Africa.
As it stands, the events of November 13, 2015 have placed the
refugee crisis brought on by Daesh center stage as a national security
concern for the West. But a reaction that chiefly seeks to exclude
refugees, kill terrorists, and control Middle Eastern territory, as
advocated by some,439 will itself only fuel the transnational
transference of lawlessness for much the same reasons as discussed
above in the Syrian context: attempts to gain coercive dominion in the
face of losses of authority in the affected social fabric, be it French or
435. Attaques à Paris: la France ‘Sera Impitoyable’ Contre l’EI, dit Hollande, LE
MONDE, Nov. 14, 2015, http://mobile.lemonde.fr/societe/article/2015/11/14/attaques-a-parisfrancois-hollande-evoque-un-acte-de-guerre-commis-par-une-armee-terroriste_4809867
_3224.html.
436. Manuel Valls: ‘nous devons anéantir les ennemis de la République,’ LE MONDE,
Nov. 14, 2015, http://mobile.lemonde.fr/attaques-a-paris/article/2015/11/14/manuel-vallsnous-devons-aneantir-les-ennemis-de-la-republique_4810179_4809495.html.
437. Aurelien Breeden, Adam Nossiter & Kimiko de Freytas-Tamura, Manhunt
Underway as Investigation of Attacks Widens, N.Y. TIMES, Nov. 15, 2015, http://www.
nytimes.com/2015/11/16/world/europe/paris-terror-attack.html?action=click&pgtype=
Homepage&clickSource=story-heading&module=span-abc-region&region=span-abcregion&WT.nav=span-abc-region (“The Paris terrorist attacks were carried out with the help
of three French brothers living in Belgium. . . . The first attacker to be identified by the
authorities was Ismaël Omar Mostefaï, 29, a native of Courcouronnes, France, who had been
living in Chartres, 60 miles southwest of Paris, and who, along with two other gunmen, killed
89 people at the Bataclan concert hall.”).
438. Id. (“One attacker — whose nationality is not yet known — evidently posed as a
Syrian migrant.”).
439. See Ben Schreckinger, GOP Candidates Link Paris Attacks to Immigration,
POLITICO (Nov. 15, 2015), http://www.politico.com/story/2015/11/paris-attacks-republicansimmigration-trump-cruz-215895 (advocating exclusion of refugees and other immigrants from
the U.S.); Theoderic Meyer, Rubio Sees a ‘Clash of Civilizations,’ POLITICO (Nov. 15, 2015),
http://www.politico.com/story/2015/11/marco-rubio-paris-attacks-isil-215905
(advocating
significantly increased coercive responses).
422
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Syrian, only weaken the authoritative structures of the government
seeking to apply coercive measures.440 The reaction ignores that much
of the problem stems from the domestic disaffection that gives rise to
homegrown radicalization and in so doing makes room for the
transnational transference of lawlessness in the first place.
Second, the French bellicose rhetoric suggests a French and/or
NATO self-defense rationale for attacks in Syria against Daesh
targets.441 This logic fails to convince for much the same reason as the
collective self-defense rationale already utilized in the Iraqi context:
there is little sense that attacks on Daesh in Syria will have any
positive impact on ending future Daesh or Daesh-inspired violence in
either Iraq or France.442 The alternative scenario of joint NATO and
Russian use of force to support Assad’s regime might be a tempting
military response to the perceived threat.443 It will do little to address
the underlying causes of the lawlessness in the region. It will merely
repress it for another day.
Third, crimes such as the ones committed in Paris, in Beirut, in
Syria, Iraq, Egypt, Libya, Nigeria and beyond put us face to face with
the dreaded powerlessness to stop atrocity and feel safe in our homes.
It should instill a sense of solidarity in our shared loss. Instead, our
dread turns to a thirst for unchecked violence against anything alien,
440. See Section III.D.
441. Katrin Bennhold & Michael Schmidt, French Warplanes Strike Islamic State
Militants in Syria, N.Y. TIMES, Nov. 15, 2015, http://www.nytimes.com/
2015/11/16/world/europe/france-islamic-state-syria.html?module=Notification&version=
BreakingNews&region=FixedTop&action=Click&contentCollection=BreakingNews&content
ID=54593430&pgtype=Homepage.
442. Compare Graeme Wood, ISIL: Who’s Calling the Shots, POLITICO (Nov. 14, 2015),
http://www.politico.com/magazine/story/2015/11/isil-whos-calling-the-shots-213360
(“One
explanation for this hurried claim of credit or endorsement may be that there exists a third
possibility, somewhere between ‘IS did it’ and the increasingly far-fetched ‘IS didn’t.’ That
possibility is something like ‘IS was surprised by what its supporters did—and maybe not
altogether pleased.’”), with Katrin Bennhold and Michael S. Schmidt, Paris Attackers
Communicated with ISIS, Officials Say, N.Y. TIMES, Nov. 15, 2015, http://www.nytimes.com/
2015/11/16/world/europe/paris-attackers-communicated-with-isis-officials-say.html?action=
click&pgtype=Homepage&clickSource=story-heading&module=span-abc-region&region=
span-abc-region&WT.nav=span-abc-region (“While the information made available so far
about the links between the Islamic State and the Paris attackers was not definitive, it
suggested at a minimum that the assailants had not acted totally on their own.”).
443. See France’s Sarkozy Urges West, Russia Tie-Up vs. ISIS, REUTERS (Nov. 15,
2015),
https://www.dailystar.com.lb/News/World/2015/Nov-15/323098-frances-sarkozyurges-west-russia-tie-up-vs-isis.ashx (quoting former French President Nicolas Sarkozy as
saying “We must draw on the consequences of the situation in Syria. We need everyone in
order to exterminate Daech, including the Russians. There cannot be two coalitions in Syria”).
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our “words had to change their ordinary meaning”—crime becoming
war, revenge self-defense, victim collateral damage—and counsel
frantic violence on all parts and moderation on none.444 It is still in
our power to react with empathy and prudence so as to protect the
authoritative nature of the very constitutive values of human dignity,
which guided legal decision making since at least the end of the
Second World War—but time is decidedly running short.
Topeka, Kansas
November 15, 2015
444. THE LANDMARK THUCYCIDES, A COMPREHENSIVE
PELOPONNESIAN WAR 199 (Robert Strassler ed., 1996).
GUIDE
TO
THE
424
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